Bloomberg Law
March 3, 2020, 3:51 PM

High Court Backs State Prosecutions of Undocumented Immigrants

Greg Stohr
Greg Stohr
Bloomberg News

The U.S. Supreme Court bolstered the power of states to prosecute undocumented immigrants, ruling against three Kansas men convicted of using other people’s Social Security numbers to get jobs.

The justices, voting 5-4 along ideological lines, rejected contentions that Kansas had intruded on the exclusive domain of the federal government by prosecuting the men for identity theft. The ruling reversed a decision of the Kansas Supreme Court.

The ruling gives states a new tool for battling illegal immigration, letting them be more aggressive on an issue handled primarily at the federal level.

The three men said their prosecutions ran afoul of a 1986 federal law that requires employers to use a form known as the I-9 to verify work authorization. The law says the I-9 form, and “any information contained in or appended to” it, can be used by prosecutors only for specified federal crimes. Prospective employees are required to put their Social Security numbers on the I-9 form.

Kansas said it didn’t rely on I-9 forms in the three prosecutions and instead used state and tax withholding forms, which also contained the stolen Social Security numbers.

“There is certainly no suggestion that the Kansas prosecutions frustrated any federal interests,” Justice Samuel Alito wrote for the majority. “Federal authorities played a role in all three cases, and the federal government fully supports Kansas’s position in this court.”

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented. Writing for the four, Breyer said “the majority opens a colossal loophole” allowing states to prosecute matters the 1986 law had reserved for the federal government.

The case is Kansas v. Garcia, 17-834.

(Updates with quotes from opinion starting in sixth paragraph.)

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Laurie Asséo, Anna Edgerton

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