The Supreme Court is set to decide next session whether states can prosecute undocumented people who use false Social Security numbers to obtain work, in a case that may tip the scales in the Trump administration’s favor in the ongoing battle over what role state and local governments should play in the federal government’s immigration policies.
The court announced on Monday that it will hear Kansas v. Garcia, an appeal of a 2017 Kansas Supreme Court decision blocking the state from prosecuting three restaurant workers who used other people’s Social Security numbers to fill out hiring paperwork for their employers. The lower-court ruling found that, because the Social Security numbers were listed on federal I-9 employment eligibility documents, Kansas did not have the jurisdiction to prosecute the workers for identity theft.
In December, the Trump administration filed a brief arguing in favor of Kansas’ jurisdiction to prosecute the workers and encouraging the Supreme Court to take up the case. Hearings could begin as early as October.
The case comes amid a tug of war between the Trump administration and states with sanctuary laws barring their employees, agencies, and law enforcement from supporting federal immigration agents. Arguments in favor of the sanctuary protections frequently cite 2012 Supreme Court case Arizona v. United States, in which the court overturned an Arizona law allowing local police to cooperate with Immigration and Customs Enforcement officials. The court ruled that, by helping ICE, Arizona was, in fact, overstepping its authority by involving itself in a matter of federal jurisdiction. In that case, the justices affirmed that, not only do state and local governments not have a responsibility to assist ICE, the law can actually prohibit them from doing so.
Some analysts suspect that the decision to take up another case regarding the interplay between the federal government and states over immigration so soon after Arizona v. United States could indicate the court’s desire to reshape that earlier decision—particularly now that the Trump administration has reshaped the court with two new justices, Neil Gorsuch and Brett Kavanaugh.
“There are some pieces of this case that make it a bit surprising that the Supreme Court decided to hear it,” says César Cuauhtémoc García Hernández, a law professor at the University of Denver and an expert on immigrants in the criminal justice system. “This appears to be a situation in which the prosecutions are not spread across the state of Kansas but are from Overland Park, a specific Kansas City suburb. … Usually the Supreme Court weighs in when there’s a dispute among courts, and here there isn’t any indication of a dispute. It seems to be that the justices on the Supreme Court are taking the opportunity to revisit the balancing that Arizona set out just a few years ago.”
The case may also amount to an attempt by the administration to bypass a divided Congress and enact anti-immigrant policy without a legislative stamp of approval. “It is telling that the president is supporting Kansas in trying to overturn a decision based on federal preemption, because that is more likely to happen with this Supreme Court than getting Congress to pass a law criminalizing undocumented immigrants for working without authorization is,” says Jean Reisz, a University of Southern California law professor and supervising attorney at the university’s immigration clinic.
The potential ulterior motives of the Trump administration aside, on its face, the court will clarify whether state officials can adjudicate in a case involving lying on federal employment documents and obtaining an unlawful Social Security number. Some analysts are confident that the ruling will favor the state’s ability to prosecute a question of identity theft.
“Insofar as the purpose of the state legislation is to address identity theft, the state has a greater interest and a separable interest from that of the federal government and its concerns with immigration,” says Douglas W. Kmiec, a professor of constitutional law at Pepperdine University and a former ambassador to Malta. “While it is possible that the Supreme Court would still find legislation not directed at immigration enforcement to be unconstitutionally burdensome under the dormant commerce clause, it is less likely to do so.”
However they decide, whether or not the justices will iterate their ruling in a way that fundamentally reshapes the interplay between federal and state governments on immigration remains to be seen.
