Kansas v. Garcia, 589 U.S. ___ (2020) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog
Kansas v. Garcia: The Court Greenlights State Prosecutions of Unauthorized Workers
Propelled to office on his celebrity and a populist platform, the Republican president’s “Make America Great Again” slogan rallied his conservative base and positioned him to sign sweeping immigration legislation during his second term in office. If that last bit sounds off, it may help to clarify that the president in question was Ronald Reagan, the year was 1986, and the legislation was the Immigration Reform and Control Act (IRCA).1
Three main policy strands characterized IRCA—a structure that lawmakers termed the “three-legged stool.”2 The first, and perhaps most prominent, was the establishment of a one-time legalization program. Two years before its passage, Reagan unapologetically described his support of legalization in the form of “amnesty for those who have put down roots and lived here, even though some time back they may have entered illegally.”3 The IRCA provisions on legalization reached nearly three million unauthorized immigrants, including a special legalization program for unauthorized agricultural workers.4 The second aspect of IRCA’s approach was increased border enforcement. This included criminal penalties for people who assisted others to enter into the United States in addition to penalties for use of fraudulent documents.5 Both of these “legs” of the stool may seem largely familiar to anyone following legislative debates on immigration reform subsequent to 1986. Initiatives such as Deferred Action for Childhood Arrivals (DACA) and the border wall exemplify IRCA’s dual legalization and border-enforcement policy calculations.
However, the final leg of IRCA’s stool—sanctions against employers who hire unauthorized workers—has mostly disappeared from immigration policy proposals. Indeed, by the 2000s, sanctions against employers had dropped precipitously6 while unauthorized immigration surged.7
IRCA took care to penalize the employers of unauthorized immigrants as opposed to criminalizing workers themselves. Its provision on unauthorized employment at 8 U.S.C. § 1324a(a)(1)(A) (2018) sanctions employers who “hire, or [] recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” A separate section of § 1324a requires employers to verify a job applicant’s immigration status and authorization to work,8 which established the I-9 form9 that is familiar to anyone in the U.S. having sought employment in the last thirty years. A subpart of the employment verification section, § 1324a(b)(5), makes plain Congress’s intent to focus liability to employers by limiting their use of the verification forms. That section states that, “[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.”10
In 2012, the Supreme Court recognized Congress’s intent to limit culpability to those who work without authorization in Arizona v. United States.11 In that case, the Court held that IRCA’s employment provisions preempted an Arizona law that sought to criminalize an immigrant’s unauthorized work.12
This brings us to the Court’s decision last week in Kansas v. Garcia.13 At issue in the case was a provision of Kansas law that criminalized an aspect of unauthorized employment—the presentation of false documents to secure work. The Kansas law did not focus on authorized employment. Indeed, the law does not mention immigration status or employment. Instead, the law criminalizes identity theft as the “‘using’ of any ‘personal identifying information’ [of] another person with the intent to ‘[d]efraud that person, or anyone else, in order to receive any benefit.’”14 Under that law, Kansas state prosecutors convicted Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara. All three men were undocumented workers who used Social Security numbers belonging to other people in order to meet IRCA’s verification requirements and to be able to work, despite their lack of employment authorization.15
In their defense at trial, the three argued that IRCA’s provision limiting the use of I-9 information for enforcement against unauthorized employment preempted Kansas’s prosecution.16 Instead of pursuing charges using the I-9 evidence, Kansas prosecutors relied on tax-withholding forms to secure identity theft convictions of all three workers.17 The workers appealed their convictions citing to the same federal statute prohibiting the state’s use of I-9 information for law enforcement purposes.18 The Kansas Supreme Court reversed their convictions, finding that “the plain and unambiguous language of 8 U.S.C. § 1324a(b)(5)” prevented the state “from using ‘any information contained within [an] I-9 form as the bas[i]s for [an] identity theft prosecution.’”19
While state prosecutors had ultimately secured convictions based on tax-withholding forms and not I-9 forms, the Kansas Supreme Court reasoned that the inculpatory information was still “contained in” the I-9 form.20 The Kansas Supreme Court also recognized that when it came to questions of unauthorized employment, its own laws faced preemption by the federal government’s regulations in this area of the law.21
The U.S. Supreme Court granted review on the meaning of § 1324a(b)(5)’s “contained in” language and the issues of federal preemption presented in the identity theft prosecutions.22 In a decision authored by Justice Alito, the Court held that IRCA did not expressly preempt the workers’ prosecution under the Kansas statute because IRCA’s preemption provision applies to employers and not to workers.23 It also found that the Kansas Supreme Court’s interpretation of the “contained in” language at § 1324a(b)(5) was contrary to English language usage.24 Additionally, such an interpretation would produce the result of broadly limiting the use of information that may appear on the I-9 in a way the Court found illogical.25 With regard to a secondary preemption question—whether the Kansas prosecutions were preempted by implication—the Court also found that they were not. On that point, the Court found that the tax-withholding forms that served as the basis for the prosecutions were not related to the federal employment verification scheme and that the Kansas statutes did not conflict with federal law (in part because federal authorities supported Kansas’s position in the case).26
The Court’s decision in supporting prosecution of workers fits within a larger trend shifting the inquiry away from unauthorized employment and toward unauthorized workers. The case is silent as to what, if any, legal action the employers of Garcia, Morales, or Ochoa-Lara faced in their employment of the three. Indeed, it is conceivable that they escaped any penalty as IRCA provides a “good faith” defense27 for employers that may have applied in these cases.
Whatever the role of the employers in Garcia, the fact remains that in the years following IRCA’s passage, employer sanctions saw a deep decline. A 2005 study by the Migration Policy Institute found a 77% dip in the number of employer audits and an 82% drop in the number of orders imposing fines against employers.28 The Garcia decision shows how in the absence of federal enforcement against employers, authorities are inclined to target the undocumented. Without this remaining leg, it seems apparent that IRCA’s three-legged stool structure is now bound to topple.
Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times, among others.
1. See Muzaffar Chishti, et al., At Its 25th Anniversary, IRCA’s Legacy Lives On, Migration Pol’y Inst. (Nov. 16, 2011), https://www.migrationpolicy.org/article/its-25th-anniversary-ircas-legacy-lives.
2. Id.
3. A Reagan Legacy: Amnesty for Illegal Immigrants, NPR (July 4, 2010, 2:12 PM), https://www.npr.org/templates/story/story.php?storyId=128303672.
4. See Chishti, supra note 1.
5. See id.
6. See Peter Brownell, The Declining Enforcement of Employer Sanctions, Migration Pol’y Inst. (Sept. 1, 2005), https://www.migrationpolicy.org/article/declining-enforcement-employer-sanctions.
7. See Jens Manuel Krogstad, et al., 5 Facts About Illegal Immigration in the U.S., Pew Res. Ctr. (June 12, 2019), https://www.pewresearch.org/fact-tank/2019/06/12/5-facts-about-illegal-immigration-in-the-u-s/.
8. 8 U.S.C. § 1324a(b).
9. See Chishti, supra note 1.
10. 8 U.S.C. § 1324a(b)(5).
11. 567 U.S. 387 (2012).
12. Id. at 403-407.
13. No. 17-834, slip op. (U.S. March 3, 2020).
14. Id. at 5 (quoting Kan. Stat. Ann. § 21-6107(a)(1) (2018)).
15. See id. at 5-7.
16. See id. at 7.
17. See id.
18. See id. at 8.
19. Id. (quoting State v. Garcia, 401 P. 3d 588, 599 (Kan. 2017)).
20. Id.
21. See id.
22. See id.
23. Id. at 10-14.
24. Id. at 11
25. Id. (noting that I-9 information includes name and email address that may also appear in a number of other contexts).
26. Id. at 18-20.
27. 8 U.S.C. § 1324a(a)(3).
28. See Brownell, supra note 6.
Recommended Citation
Cori Alonso-Yoder, Response, Kansas v. Garcia: The Court Greenlights State Prosecutions of Unauthorized Workers, Geo. Wash. L. Rev. On the Docket (Mar. 12, 2020), https://www.gwlr.org/kansas-v-garcia-the-court-greenlights-state-prosecutions-of-unauthorized-workers/.
