Criminal Justice Insider

The Supreme Court has a new rule allowing counsel two minutes of uninterrupted argument before the justices pepper them with questions. One of the earliest oral arguments to be held under the new rule got significant press coverage when Justice Sotomayor interrupted counsel during the first two minutes only to be lightly rebuked by Chief Justice Roberts. However, far more interesting than that exchange was the case at bar and how it may impact the future of state criminal law and immigration enforcement.

Kansas v. Garcia, 17-834, involves the preemption of a state criminal prosecution by federal immigration law. Ramos Garcia, the defendant, is an unauthorized alien without legal status to work in the United States. He used a stolen social security number to fill out a Form I-9 in order to work as a dishwasher in Kansas. He was caught and convicted under Kansas’s state identity theft law.

On appeal, Mr. Garcia argued that his prosecution was preempted by the Immigration Reform and Control Act of 1986 (the “IRCA”) which contains an express preemption provision. This particular provision bars a state from imposing penalties on an employer of unauthorized aliens, but is silent with regard to whether additional penalties can be imposed on the employees themselves. The IRCA also prohibits the Form I-9 from being used for any purpose other than federal immigration enforcement. Kansas used information from the form in prosecuting Mr. Garcia. The Kansas Supreme Court held that the IRCA expressly and intentionally preempted the state prosecution of Mr. Garcia, and that such immigration enforcement is the exclusive domain of the federal government. The State of Kansas appealed to the Supreme Court.

The case, while narrow on its face, presents important questions about the limits of state police power. Kansas, of course, has an interest in enforcing its laws and protecting its citizens, and has argued that the Kansas Supreme Court’s interpretation of the IRCA improperly limits the traditionally broad police powers of a state. Somewhat ironically, the federal government agrees with Kansas and has argued that the IRCA and Kansas’s identify theft laws are not in conflict. Kansas can prosecute Mr. Garcia using information other than what is found on the Form I-9.

Here’s the rub: Let us assume that the Supreme Court accepts the argument of Kansas and the federal government, and finds that Kansas can prosecute unauthorized aliens using state identity theft laws. Such a ruling could hypothetically open the door for states which provide protections for unauthorized aliens to argue that such policies do not conflict with federal law. Sanctuary cities and states could argue that federal law is no longer the exclusive law of the land when it comes to immigration enforcement. If a state can prosecute an unauthorized alien, so too can it protect that person. In arguing for broader police powers, Kansas and the federal government could be opening the proverbial can of worms on the issue of immigration enforcement nationwide.

In contrast, if the ruling of the Kansas Supreme Court is upheld, Kansas will find its ability to enforce its own penal laws hampered. This case could potentially expand the doctrine of federal preemption and limit the ability of state law enforcement to police their own domiciliaries.

It will be interesting to see whether the Supreme Court rules broadly on the issue of federal preemption or confines its ruling narrowly. Either way, the Supreme Court’s decision will have important implications for either state criminal law or federal immigration law. We will update this blog with developments on this important case.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533