Chris Carlson/AP Photo
Federal agents serve an employment audit notice at a 7-Eleven store in Los Angeles, in 2018. A case now before the U.S. Supreme Court hinges on the use of employment forms by the state of Kansas to prosecute undocumented immigrants.
With the traditional “Oyez, oyez, oyez,” the justices filed into the courtroom on Wednesday from behind a red velvet curtain, as spectators stood in anticipation. The oral argument moved swiftly, with the justices quick to interrupt counsel when they had a question and again to follow up if the answer was insufficient. The case, Kansas v. Garcia, has major implications for undocumented immigrants living and working in the United States.
The case stems from an incident in August 2012 when Ramiro Garcia, the respondent in the case, was pulled over for speeding on his way to work. The officer ran a routine records check, and the results led the officer to refer Garcia’s case to a detective, who discovered that Garcia was undocumented.
That a traffic stop led to such a discovery is why immigrant rights advocates say that immigrants are often wary of calling the police for help, getting a driver’s license (when states allow it), signing up for public benefits (when their immigration status allows), or engaging with civil society more generally. The feeling of always being under scrutiny forces immigrants into the shadows and prevents full integration into public life.
Garcia’s traffic stop led to law enforcement obtaining Garcia’s employment application documents from the restaurant where he worked. These documents showed that Garcia was using a stolen Social Security number. Kansas prosecuted Garcia for identity theft, along with two other immigrants who similarly provided false information. The various forms on which the stolen Social Security numbers were used were state (Kansas’s K-4 withholding form) and federal (W-4 withholding and the I-9, a federal form where someone proves their U.S. citizenship or authorization). Unlike the other forms, the I-9 is essentially an immigration form, covered under the Immigration Reform and Control Act of 1986 (IRCA).
In short, Garcia’s side argues that, because the I-9 is a federal form specifically prohibited from being used for anything except immigration, using information from the I-9 in a state identity-theft case is preempted by federal law. Because the three forms are submitted at the same time to obtain employment, Garcia’s counsel Paul Hughes contends that the same preemption that applies to the I-9 applies to the other forms as well.
It may sound convoluted, but the case has significance not just for undocumented immigrants seeking employment in the U.S. but for states’—in this cases Kansas’s—ability to enforce their own immigration policy. Under federal immigration policy, this is generally not permitted, according to a case preview by John Marshall Law School professor Steven Schwinn. According to Schwinn’s analysis, Kansas isn’t just trying to navigate the federal-state authority over employment authorization and strictly attempting to prosecute identity theft. Instead, Kansas is trying “to side-step federal preemption by cunningly avoiding prosecutions based on the defendants’ I-9 forms.” Indeed, Schwinn makes the point that Kansas is in effect trying to make its own immigration policy.
Considering the draconian measures against immigrants that we’ve seen in places like Arizona, preventing state-based immigration policies could be desirable. Kansas contends that it is only attempting to uniformly prosecute identity theft, something millions of Americans suffer every year, and something that Garcia was convicted of by a jury in Kansas. After the Kansas Supreme Court ruled in favor of Garcia, Kansas appealed the decision to the Supreme Court.
During oral argument, the justices—liberal and conservative alike—seemed to find issue with Kansas Attorney General Derek Schmidt’s argument that the I-9 and the tax withholding documents should be considered disparate entities. Justice Sotomayor and Justice Kavanaugh argued that the I-9 and the other forms are submitted together. Despite counsel objections from Kansas, the justices insisted that this was the case, and it would mean that federal law preempts Kansas’s ability to prosecute for identity theft using information obtained from these forms.
“The package,” Justice Ginsburg contended, “that was submitted to the employer was all one package, the I-9, the withholding form, federal and state. It’s not that these were discrete episodes.” And all three forms, she said, were for the same benefit: employment.
Although this case is distinct, there was a similar case seven years ago, Arizona v. United States. The court ruled that federal immigration law preempted Arizona’s state law, based on the principle of the Supremacy Clause of the Constitution. In today’s case, part of the dialogue between the Kansas counsel and the justices involved references to this case. Schmidt, arguing on behalf of Kansas, did concede at one point that the state could not use the I-9 because federal law preempted it. “We don’t intend to do that,” Schmidt said. However, he argued that that did not mean the state could not use the other forms to prosecute identity theft. Schmidt frequently emphasized that it’s important to understand what Congress intended in 1986 when it created a “new system” for immigrant employment verification, as he put it. It could not, therefore, have been an oversight that treated the W-4 differently from the I-9.
Schmidt argued that the I-9 is specifically “employment verification” and that the withholding forms are separate and therefore not subject to preemption. But, several justices pointed out, all three forms are needed to obtain employment—and perhaps should all be considered part of “employment verification.” The lingering question: If all three are “employment verification,” wouldn’t they be subject to preemption?
At one point, Justice Elena Kagan noted that if a certain aspect of the petitioners’ case were true, then this “eviscerates everything we said” in the Arizona case. Going further, she said, “I’m suggesting that if you’re right on this case, we might as well not have issued Arizona.”
SCOTUSBlog called this case an “immigration federalism” case, or a case that illustrates “the conflict between states interested in immigration enforcement and a federal [system that sees] … the federal government as the primary, if not sole, enforcer of immigration law.”
Several amicus briefs, including from the National Immigration Law Center and the Southern Poverty Law Center, support Garcia. You would think that the Trump administration, eager to maintain its position as a strong federal authority on immigration, would reject Kansas’s argument. But an amicus brief from Solicitor General Noel Francisco takes Kansas’s side as well. The fact that the state’s actions against Garcia happened to be punitive obviously overtook whatever belief the administration has in a strong central government on immigration matters.
This piece has been updated.
