States may prosecute illegal aliens for identity theft, Supreme Court decides

The Supreme Court gave the Trump administration reason to celebrate this week. In a 5-4 decision issued on Tuesday, the justices decided that federal law did not prevent the state of Kansas from prosecuting illegal aliens for identity theft. 

The issue

The case that the high court decided was Kansas v. Garcia, which involved three illegal aliens who were convicted of identity theft under Kansas law for using stolen Social Security numbers on employment forms.

But the defense tried to get the case thrown out, and they almost succeeded. Former Trump administration official Kris Kobach, a constitutional lawyer with much experience in this field, explained the defense’s argument in an article for Breitbart

“The liberal claim is that whenever there is an overlap between state and federal law affecting illegal aliens, and the purposes of the state legislature and Congress might have been somewhat different, the state law is invalid,” Kobach wrote.

This argument was previously accepted by the Kansas Supreme Court, but the U.S. Supreme Court disagreed.

Decision rendered

Justice Samuel Alito rejected the defense’s argument in the majority opinion. “The mere fact that state laws like the Kansas provisions at issue overlap to some degree with federal criminal provisions does not even begin to make a case for conflict preemption,” he wrote.

Alito continued: “From the beginning of our country, criminal law enforcement has been primarily a responsibility of the States, and that remains true today. In recent times, the reach of federal criminal law has expanded, and there are now many instances in which a prosecution for a particular course of conduct could be brought by either federal or state prosecutors. Our federal system would be turned upside down if we were to hold that federal criminal law preempts state law whenever they overlap, and there is no basis for inferring that federal criminal statutes preempt state laws whenever they overlap.”

Some of Alito’s colleagues, Justices Clarence Thomas and Neil Gorsuch, took it a step further in a separate concurring opinion arguing that such a defense should never be allowed. But nonetheless, as Kobach explains, the court’s decision will have far-reaching consequences.

Looking forward

Kobach writes: “For decades, the ACLU and other liberal attorneys have been pushing the theory that any time Congress passes a law in an area, any state law in the same area that can somehow be imagined to differ with the purposes of Congress is preempted and invalid.”

But with Tuesday’s decision, Kobach says it will no longer be so easy to make such arguments. “[Alito’s] words will be quoted many times in the future by lawyers defending the validity of state laws. Not just in the identity theft and immigration fields, but in all areas. Challenged state laws will stand a much greater chance of surviving judicial review.”

It’s reason indeed for President Donald Trump and millions of Americans to celebrate.

Kansas Attorney General Derek Schmidt praised the high court’s decision, saying, “Congress never intended to block Kansas from prosecuting people who falsify tax forms or private legal documents merely because the defendant also falsified federal employment verification forms. Today’s ruling makes clear that state identity theft laws apply to everybody, including offenders who are in the country unlawfully and apply for a job.”

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