Kansas v. Garcia

EXPRESS PREEMPTION

Petitioner Kansas argues that the language of the IRCA’s preemption clause, found at 8 U.S.C. § 1324a(b)(5), does not expressly preempt Kansas from prosecuting Garcia for using another person’s social security number on “forms other than the I-9.” Kansas contends that the law limits the use of information in or attached to the I-9 itself but does not extend that limitation to the use of the same information outside the I-9 form and its physical attachments. Kansas claims Garcia’s prosecution was based on misrepresentations made on state and federal tax forms, not on misrepresentations made on the I-9 form, and thus was based on forms used to calculate employee tax withholdings, not forms used to determine whether he was authorized to work in the United States. Kansas argues that because the W-4, K-4, and I-9 are distinct forms that are filed with three different government agencies for three different purposes, Garcia’s misrepresentations on each form amount to three distinct “criminal offenses.”

Kansas also maintains that the historical context and the way Congress chose to structure the IRCA support Kansas’s reading of the statute as applying solely to the I-9 form itself. Kansas contends that the I-9 form was created to curtail the employment of undocumented persons and, in drafting IRCA, Congress aimed only to regulate the use of information on the I-9 form, not information on forms unrelated to the employment verification process. Kansas suggests that Congress’s use of the phrase “information contained in [the I-9]” in the IRCA operates as an “evidentiary limitation” to the I-9 form itself, but not on the use of that information in other forms. Kansas further explains that when Congress uses this phrase in other statutes, the phrase refers to information contained in a specific location, such as the I-9 here. Kansas thus concludes that this phrase refers to information contained within the “four corners” of the I-9 form but cannot pertain to information on other forms like the tax-withholding documents from this case.

In response, respondents Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara (collectively “Garcia”) argue that Kansas mischaracterizes the nature of its prosecutions by alleging that the prosecutions do not pertain to federal work authorization, but instead pertain only to the use of stolen social security numbers on tax forms. Garcia explains that Kansas’s identity theft and false information statutes require the State to “prove fraud to receive a ‘benefit’ or ‘property,’” and that, in its prosecution of Garcia, Kansas characterized the wages and benefits of unauthorized employment as such a benefit or property, thus tying the identity theft prosecution to work authorization. Moreover, Garcia maintains that Kansas cannot claim that Garcia’s prosecution was based on state tax laws because these laws were not invoked during the prosecution. Additionally, Garcia contends that Kansas has reversed its position on whether Garcia’s act of filling out the I-9, W-4, and K-4 forms with false information constituted one act or three separate acts. Garcia notes that Kansas initially argued in the lower state courts that Garcia’s filling out of the K-4 form was part of the same act as filling out the W-4 form and the I-9 employment application because all three acts were part of the same attempt to defraud the restaurant at which he hoped to work. Kansas now, emphasizes Garcia, has reversed its position from the lower courts to argue that Garcia’s filling out of each form is a distinct criminal offense because each constitutes a false statement made three different times. Garcia argues that Kansas cannot, after convincing state courts to see these acts as one instance of fraud, reverse course and argue the opposite position that it did below, because doing so would warrant dismissal, or at least, under the doctrine of estoppel, prevent Kansas from making the argument that Garcia’s prosecution did not involve false work authorization.

Additionally, Garcia asserts that the IRCA expressly preempts Kansas from using false information located on an I-9 to prosecute fraud against the “federal employment verification system” by vesting the federal government with exclusive control over prosecuting this kind of fraud. Garcia maintains that the IRCA explicitly states that any information on the I-9 or appended to it can be used only for enforcement of the IRCA and four other specific federal offenses; this language, Garcia contends, demonstrates that any information provided to the employee verification system through the I-9 cannot be used for state prosecutions, but instead, only for federal prosecutions. Garcia further asserts that Congress reserved its right to prosecute employment authorization fraud through 18 U.S.C. § 1546(c), which lays out the specific role of the states to investigate fraud in work authorization, but not to prosecute. If states had the same prosecutorial power of the federal authorities, Garcia continues, this law would be rendered meaningless.

IMPLIED PREEMPTION

Kansas argues that not only is there no basis for express preemption of Kansas’s law in the IRCA, there is also no evidence in the language or context of the statute that suggests the IRCA impliedly preempts state law.Kansas explains that implied preemption occurs where federal regulatory schemes are either so detailed that they “leave no room for state regulation,” a phenomenon called field preemption, or where state and federal law conflict on an issue, a concept referred to as conflict preemption.

Kansas argues that the IRCA does not field preempt Garcia’s prosecution because the field in Garcia’s case is “identity theft,” not “false documents used by unauthorized aliens to show work authorization, the employment verification process, or the unauthorized employment of aliens.”The State emphasizes that field preemption typically applies only to narrow fields and that Congress has not legislated so specifically on identity theft such that no room has been left for state legislation on the issue. Kansas further maintains that Garcia was not prosecuted for information included on the I-9 form or “as part of” the process of verifying work authorization, and the Kansas statutes in the case do not speak to unauthorized employment, employment verification, or aliens showing work authorization. Moreover, Kansas maintains that even if these three fields were at issue here, the Supreme Court has not decided that Congress inhabits these fields. Kansas continues that the IRCA’s express preemption provision prevents states from prosecuting employers who employ undocumented persons but does not address whether states can penalize employees. Kansas contends that this statutory silence demonstrates that Congress did not “intend to occupy the whole field” of employment of aliens. Kansas further asserts that even if Congress occupied one of these fields, the Supreme Court has a duty to adopt an interpretation of the IRCA that opposes pre-emption.

Additionally, Kansas contends that its prosecutions of the respondents are not conflict preempted. Kansas explains that conflict preemption occurs where an individual cannot possibly comply with both federal and state law or where a state law prevents the enforcement of a federal law. Kansas believes that individuals need only supply accurate information on state and federal forms to fully comply with both the IRCA and state identity theft statutes, and that its prosecution of Garcia did not hinder Congress’s ability to enforce the IRCA. Kansas maintains that its false information and identity theft statutes do not conflict with the IRCA’s federal scheme because they do not regulate work authorization or the employment of unauthorized aliens. Further, Kansas does not argue that its state laws cover I-9 misrepresentations. Instead, Kansas asserts that its prosecution of Garcia does not usurp federal enforcement of work authorization, particularly because Garcia’s prosecution was not based on his immigration status, and the prosecutions were made possible by joint state and federal investigations designed to decrease identity theft.

Conversely, Garcia argues that even if the IRCA does not expressly preempt Garcia’s prosecution, it impliedly does so. Garcia first contends that the IRCA field preempts Garcia’s prosecution because Congress “occupies the field relating to the federal employment verification system” through IRCA’s uniform, detailed rules governing work authorization for undocumented immigrants. Garcia argues that any undocumented person who tries to obtain employment violates congressional policy through the IRCA, and the law provides appropriate criminal, civil, and immigration penalties for fraud at the federal level. Garcia asserts that both the detailed nature of this federal employment verification scheme and the functional, dominant role the scheme plays in preventing unauthorized employment of undocumented immigrants are evidence that Congress has such a strong interest in employment verification that it left no room for State law supplementation or enforcement.

Furthermore, Garcia argues that the prosecutions are also conflict preempted because the prosecution of Garcia for identity theft conflicts with the IRCA such that both the state law and the IRCA punish him for the same conduct. Garcia asserts that because the IRCA already has a well-established scheme for the prosecution of fraud in the work authorization process, Kansas cannot use its false-information and identity theft statutes to prosecute the same behavior. Garcia emphasizes that allowing a state and a federal statute to penalize the same conduct creates a risk that state and federal authorities will “exercise prosecutorial discretion differently” and, in doing so, individuals will be punished differently for the same conduct depending on whether the state or federal government prosecutes them. Furthermore, Garcia points out that the federal employment verification scheme is an important part of the larger national immigration policy, which is a “uniquely federal interest” within the purview of foreign relations, that the states do not share.