Recently the
Supreme Court ruled that:
The US Supreme Court ruled 5-4 Tuesday in Kansas v. Garcia that federal immigration law does not preempt a state prosecution for identity theft.
I had to pause when reading that because:
First: Why would a federal law prevent the prosecution of the crime of identity theft?
Second: Why is this a split decision?
Ramiro Garcia, Donaldo Morales and Guadalupe Ochoa-Lara were all found to have used someone else’s social security number to qualify employment and/or housing. The state of Kansas utilized the I-9 form to charge the three with the state crime of identity theft.
The Immigration Reform and Control Act (IRCA) requires that employers verify that new employees are not unauthorized aliens. This process is accomplished through the completion of the federal work-authorization form (I-9). The forms require the employee to provide certain information, such as the employee’s email address, telephone number, birth date and social security number.
All three respondents in these cases argued that IRCA preempted their prosecutions. The argument was based on 8 USC §1324a(b)(5), which states that “I–9 forms and ‘any information contained in or appended to such form[s] may not be used for purposes other than for enforcement of’ the INA or other listed federal statutes.”
So what does that section say?
(5) Limitation on use of attestation form
A form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of title 18.
And what do the sections in title 18 say?
Head of section 1001:Part I. CRIMES Chapter 47. FRAUD AND FALSE STATEMENTS
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
Head of section 1028:18 U.S. Code § 1028. Fraud and related activity in connection with identification documents, authentication features, and information
(a) Whoever, in a circumstance described in subsection (c) of this section—
(1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document;
(2) knowingly transfers an identification document, authentication feature, or a false identification document knowing that such document or feature was stolen or produced without lawful authority;
(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents;
(4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States;
(5) knowingly produces, transfers, or possesses a document-making implement or authentication feature with the intent such document-making implement or authentication feature will be used in the production of a false identification document or another document-making implement or authentication feature which will be so used;
(6) knowingly possesses an identification document or authentication feature that is or appears to be an identification document or authentication feature of the United States or a sponsoring entity of an event designated as a special event of national significance which is stolen or produced without lawful authority knowing that such document or feature was stolen or produced without such authority;
(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law; or
(8) knowingly traffics in false or actual authentication features for use in false identification documents, document-making implements, or means of identification;
Head of Section 1546:18 U.S. Code § 1546. Fraud and misuse of visas, permits, and other documents
(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or
Head of section 1621: 18 U.S. Code § 1621. Perjury generally
Whoever—
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or...
So Ramiro Garcia, Donaldo Morales and Guadalupe Ochoa-Lara are essentially admitting to the crime, under which they have run afoul of the above listed codes and their argument is that the state didn't have the right to prosecute them? Hmmm...OK then, why weren't they charged by the feds as soon as the fraud was discovered? If they want to play that game, INS should have arrested them on the spot.
That said let's
look at the dissent in the decision:
Our precedent demonstrates that IRCA impliedly preempts state laws that trench on Congress’ detailed and delicate design. In Arizona, we invalidated a state law that made it a crime for an unauthorized alien to work. 567 U. S., at 403. In reaching that conclusion, we acknowledged that the Act’s employer-related sections contain an express preemption provision, while the employee-related provi- sions do not. Id., at 406. Even so, the Act’s employee- related provisions retained, through implication, preemp- tive force. Id., at 406–407.
Congress, we explained, “made a deliberate choice not to impose criminal penalties on aliens who” merely “seek, or engage in, unauthorized employment.” Id., at 405. The Act puts combating the employment of unauthorized aliens at the forefront of federal immigration policy. Id., at 404. But it also reflects “a considered judgment” not to pursue that
goal at all costs. Id., at 405. “Unauthorized workers trying to support their families” usually “pose less danger than al- ien smugglers or aliens who commit a serious crime.” Id., at 396. And they may have “children born in the United States, long ties to the community,” or other attributes that could counsel in favor of prosecutorial restraint. Ibid.
We ultimately held in Arizona that the States thus may not make criminal what Congress did not, for any such state law “would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens.” Id., at 406. Given that “obstacle to the regulatory system Congress chose,” we concluded that the state law at issue conflicted with the federal Act and was therefore preempted. Id., at 406–407. [my underlines]
Note that these judges admit that the congress passed laws to purposely keep states from enforcing employment AND immigration law because of the threat those laws imposed on those in the country illegally. These same people lecture us about the "rule of law" and "nobody above the law" who then create "sanctuary states" where they can pre-empt federal enforcement of immigration and employment law at will.
A serious country would not only allow the federal government (or national government) to enforce it's immigration and employment laws, it would not prevent it's states, counties, districts, boroughs or whatever from doing the same. And the lawmakers would definitely not purposely try to "not impose criminal penalties" on those who have trespassed AND committed ID theft which no citizen would be able to get away with.
