Labor & Employment Law Daily IRCA did not preempt Kansas laws used to prosecute aliens who fraudulently used SSNs on tax-withholding forms
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Thursday, March 5, 2020

IRCA did not preempt Kansas laws used to prosecute aliens who fraudulently used SSNs on tax-withholding forms

By Kathleen Kapusta, J.D.

In addition to finding no express preemption, the divided High Court found no basis for finding field or conflict preemption.

Reversing a divided Kansas Supreme Court, which held that the Immigration Reform and Control Act (IRCA) expressly prohibits a state from using “any information contained within [an] I–9 as the bas[i]s for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I–9,” Justice Alito, writing for a divided U.S. Supreme Court, found that IRCA did not expressly preempt the Kansas laws under which three aliens were convicted for fraudulently using another person’s Social Security numbers on their W-4s and K-4s they submitted upon obtaining employment. Nor, held the Court, was there any basis for finding field preemption or any ground for holding that the laws at issue conflicted with federal law. Justice Thomas, with whom Justice Gorsuch joined, wrote a separate concurring opinion while Justice Breyer, with whom Justices Ginsburg, Sotomayor, and Kagan joined, concurred in part and dissented in part (Kansas v. Garcia, March 3, 2020, Alito, S.).

Although the respondents in the three underlying cases were not authorized to work in the United States, they obtained jobs by using another person’s Social Security number on their I-9s, W-4s, and K-4s. All three were subsequently convicted under Kansas identify theft and fraud laws and their convictions were upheld by the Kansas Court of Appeals. A divided state supreme court, however, reversed. In addition to finding that IRCA expressly prohibits a state from using information contained within an I–9 to prosecute an alien who uses another person’s Social Security number in an I-9 for identity theft, it held that the “fact that this information was included in the W–4 and K–4 did not alter the fact that it was also part of the I–9.”

Express preemption. In front of the Supreme Court, the respondents first argued that the Kansas laws at issue were preempted insofar as they apply to an unauthorized alien’s use of false documents on forms submitted to secure employment. While IRCA contains a provision that expressly preempts state law, it applies only to the imposition of criminal or civil liability on employers and those who receive a fee for recruiting or referring prospective employees, the Court noted, finding it inapplicable here.

The Kansas high court, however, relied on another provision, Section 1324a(b)(5), which broadly restricts any use of an I–9, information contained in an I–9, and any documents appended to an I–9. The prosecutions in these cases, the state high court held, violated this provision because the charges were based on the respondents’ use in their W–4’s and K–4’s of the same false Social Security numbers that they also inserted on their I–9’s.

“Taken at face value, this theory would mean 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,” said the Court, explaining that the mere fact an I-9 contains an item of information such as a name or address does not mean the information “contained in” the I-9 is used whenever the name or address is later employed.

Although the Kansas Supreme Court suggested its interpretation applied only to the prosecution of aliens for using a false identity to establish employment eligibility, the Court found “no trace of these limitations” in the text of Section 1324a(b)(5). “The point need not be belabored any further: The argument that §1324a(b)(5) expressly bars respondents’ prosecutions cannot be defended.”

Federal employment verification system. The respondents next argued that Section 1324a(d)(2)(F), which prohibits use of the federal employment verification system “for law enforcement purposes other than” enforcement of IRCA and a handful of federal statutes. However, this argument was based on a “misunderstanding of the meaning of ‘federal employment verification system,’” the sole function of which is to establish that an employee is not barred from working in this country due to alienage. Completing tax withholding documents, the Court explained, “plays no part in the process of determining whether a person is authorized to work.” Thus, the Court found no express preemption in these cases.

Field preemption. Next, the respondents’ argued that the laws, as applied, fall into a field implicitly reserved for federal regulation because IRCA preempts the field of fraud on the federal employment verification system. The Court again pointed out that the submission of tax-withholding forms is not part of that system. Rejecting further their contention that federal law precludes their prosecutions because the Kansas laws at issue require proof that the accused engaged in the prohibited conduct for the purpose of getting a “benefit”—here, a job—the Court explained that while submitting W–4’s and K–4’s helped the respondents get jobs, it did not help them show they were authorized to work in this country. Thus, there was no basis for finding field preemption.

No conflict with federal law. Nor, said the Court, was there any basis for holding that the Kansas statutes conflicted with federal law. “In enacting IRCA,” wrote Justice Alito, “Congress did not decide that an unauthorized alien who uses a false identity on tax-withholding forms should not face criminal prosecution. On the contrary, federal law makes it a crime to use fraudulent information on a W–4.” The mere fact that state criminal laws overlap to some degree with federal criminal provisions is not enough to find conflict preemption, the Court observed, finding that there was no suggestion here that the Kansas prosecutions frustrated any federal interests. Accordingly, the Justices reversed and remanded to the Kansas Supreme Court.

Thomas concurrence. In a separate concurring opinion, Justice Thomas, with whom Justice Gorsuch joined, agreed that the prosecution and convictions of the respondents were not preempted by Section 101(a)(1) of IRCA. He wrote separately to reiterate the view that the Court should explicitly abandon its “purposes and objectives” preemption jurisprudence. “In these cases, the Court correctly distinguishes our ‘purposes and objectives’ precedents and does not engage in a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives.’”

Breyer partial concurrence and dissent. In a partial concurrence and dissent, Justice Breyer, with whom Justices Ginsburg, Sotomayor, and Kagan joined, agreed with the majority that IRCA did not expressly preempt Kansas’ criminal laws as they were applied in the prosecutions at issue here. Disagreeing with the majority’s conclusion about implied preemption, however, Justice Breyer explained that “in my view, IRCA’s text, together with its structure, context, and purpose, make it ‘clear and manifest’ that Congress has occupied at least the narrow field of policing fraud committed to demonstrate federal work authorization.”

IRCA, he argued, creates a “comprehensive scheme” to combat the employment of illegal aliens and its text sets forth highly detailed requirements. “State laws that police fraud committed to demonstrate federal work authorization are similarly preempted. Even though IRCA criminalizes that conduct, the Act makes clear that only the Federal Government may prosecute people for misrepresenting their federal work-authorization status.”

By permitting the prosecutions at issue here, “the majority opens a colossal loophole. 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.”

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