State Identity Theft Law Not Preempted by Federal Immigration Law

Immigration is a subject fully within the authority of the federal government. A federal statute requires new employees to complete a form to confirm they are not unauthorized aliens. The law makes it a federal crime to provide false information on this form. It also preempts state laws imposing sanctions on employers for hiring unauthorized aliens.

A general Kansas law forbids identity theft. Can this law apply to an employee who put someone else’s Social Security number on the work authorization form and also on the tax withholding forms? The Supreme Court today said yes in a surprisingly close decision.

The case is Kansas v. Garcia, No. 17-834, decided 5-4.

The nine Justices are unanimous that federal law does not expressly preempt the state law at issue. The dust-up is over “implied preemption.” Justice Alito’s opinion for the Court holds that the statute is not impliedly preempted. Justice Thomas, along with Justice Gorsuch, joins that opinion as far as it goes. He would go farther and dump the whole notion that a state statute can be  preempted because a court deems it contrary to the “purposes and objectives” of a federal statute.

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, finds the statute impliedly preempted. That’s quite a stretch, in my opinion. It requires going beyond the immigration form to include the tax forms, where the claim for federal preemption is much weaker.

The fact that four Justices are willing to stretch that far to reach a pro-unauthorized-immigrant result adds weight to Justice Thomas’s argument. He calls the exercise “judicial guesswork.” The more guesswork there is in judging, the more likely it is that the result will come down in favor of the judge’s ideological leanings.