High Court Considers Immigration Enforcement by States

and on Bloomberg dot com slash podcasts. The Supreme Court heard oral arguments today in a case that could dramatically change the landscape of immigration enforcement in this country by bolstering the power of states to prosecute undocumented immigrants for identity theft if they use someone else's social Security number to apply for a job. Joining me is Leon Fresco, an immigration law expert at Hollandon Night. This is about three illegal immigrants who got restaurant jobs using other people's

social Security numbers. Why is this at the Supreme Court? Well, it's at the Supreme Court because it is a more important principle with regard to whether state can take it upon themselves to enforce the immigration and law. And what the complication of this case is is that the states are saying that they're not enforcing the immigration law, that what they're doing is they're enforcing identity theft provisions that prevent undocumented workers from using the identities of other people

in order to get the jobs. And what the people challenging these convictions are saying is that, no, if the information is coming from the very process that an employee uses to obtain a job and obtain immigration authorization to have that job, then it's something that a state cannot take upon themselves to prosecute. It must be prosecuted by

the federal government. Didn't the Supreme Court deal with this in a case involving Arizona trying to use identity theft laws to prosecute non citizens for working illegally in sure, So this is where it's complicated is Arizona passed a broad range of laws that allowed the states to take over the same immigration enforcement functions that the federal government, and one of them was prosecuting people who worked without authorization in the United States. And so that was stricken down.

And the question is because that broad provision that was prosecuting anyone who worked illegally in the United States was stricken down, The question is what is to happen about this narrow identity theft part of it? Is this to be something that is permitted because any identity theft could be prosecuted regardless of whether you were undocumented or not.

Or is it subsumed by the larger holding of Arizona, which is, look, the role of prosecutions in the employment process that have to do with people lying for immigration related reasons has to be taken up by the federal government and the states simply are preempted from taking this role. So leon is this about statutory interpretation then, or is it about statutory interpretation in light of past rulings of

the court. Well, it is definitely about statutory interpretation and what Congress meant to do in what's called thirty four B five when it's preempting the states from engaging in immigration enforcement. But the Court is very concerned about, well, what is left of the Arizona ruling If a state can basically harvest the information from immigration documents and charge

people for other reasons that aren't immigration reasons. Everybody understands that what will be left is, for sure, a state cannot charge for immigration reasons explicitly, but if they're doing the exact same thing but calling it a different charge, is a state permitted to do that? And so that's where the battle lines are now. Explain how Kansas is using this, how they're prosecuting them for identity theft, and

then what happens as far as deportation. Sure, well, the way that happened in these particular three cases was a package of information was provided to the employer or by the worker, and that package included the anine form where the person gives their name, their Social Security number, their address, and their identifying documentation and also tax withholding forms were given as well for both state and federal taxes. And

so that packet of information was given. And what Kansas is trying to say is even though that was all given as a packet, the fraud that's being prosecuted is on the non ininine form. It's on the tax part

of it that they're prosecuting the fraud. And what the people challenging these prosecutions are saying is, yeah, but that whole package was given to the employer because of the fact that the I nine was in it, and the employee was trying to show that they had documented status that permitted them to work, and the way they were trying to show that was by using fake identity. And so that's the battle is if you have this package

of information that is dependent upon the anine form. Is it permissible then for states to prosecute something that would normally be prosecuted by the federal government. Is this reminiscent of former Maricopa County Arizona Sheriff Joe R. Pio, who used state identity theft laws to raid businesses and round

up illegal immigrants. Absolutely, And that's what the concern is of the courts is that this could end up being that which is, at the end of the day, if the court sets no limiting principle here other than you can't prosecute someone for a false statement on the NY nine, but you could prosecute them for anything else, then at what point is this the fact that at the end every state will have it in their own hands to prosecute people who are undocumented for working illegally, which is

what you know the Arizona case that states couldn't do that. And so how would this effectively, not legally, but effectively not be a reversal if states could just figure out this loophole to say, look, it isn't just the immigration document that immigrants give. They also have to give a corresponding tax document. So when they do this together. Let's just charge them for fraud on the tax document. Did the Supreme Court justices give any hints as to how

they felt about this? Sure, so I think it's pretty clear that the four justices who are appointed by Democratic presidents think that this was pre ended, and they said

it as much in the oral argument. I think Justice Kavana is the potentially swing vote here because he's the one who was having trouble and asked repeatedly how the Kansas Solicitor General could rectify the fact that this prosecution was happening with the Arizona decision and where the limiting principles are, and he certainly didn't feel like at least

the Kansas Solicitor General gave him an acceptable answer. So what will be the question here is whether Justice Kavana comes up with his own limiting principle or whether he thinks these prosecutions should just be done by the federal government. Integration attorneys say they're concerned about the potential for a patchwork of different immigration related laws across the country. Do

you see that as a problem. That's always a possibility here when you start allowing states to delve into these employment realms is once you start saying okay, a state can now prosecute what is, in essence, the act of trying to work as an undocumented person. All it will take then is for states to require the use of e verify, which is permitted by a different case called

Chamber of Commerce versus Whiting. And then when you require the use of e verify, anybody who uses e verify who's trying to get a job in such an environment will inevitably have to create an identity theft in order to fool the system. And so whenever anybody does that, the states will be able to come in and check for that and prosecute without the federal government having done

anything anywhere in that process. And so I think that's what the concern is amongst immigration lawyers is that should be a federal answer here, and you know, if it starts being much more difficult in terms of enforcement in one state than another, than there isn't this national way of approaching the immigration problem. Thanks Leon, that's Leon Fresco of Holland and Knight. Thanks for listening to the Bloomberg Law podcast. You can subscribe and listen to the show

on Apple Podcasts. SoundCloud and on bloomberg dot com slash Podcast. I'm June Brosso. This is Bloomberg