Will Kavanaugh defect on an important criminal alien case?

· October 17, 2019  
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It’s complete anarchy. States, reminiscent of the Confederate states in the 1860s, are thumbing their noses at foundational federal laws over sovereignty and criminal aliens, while the courts often side with the states. Then, suddenly, when a state merely wants to complement federal law against illegal aliens engaging in odious forms of identity theft, the courts shed their feigned affinity for states’ rights and tout federal preemption! “How dare you interfere with federal immigration law!” The only question is whether Justice Kavanaugh will now side with the four leftists in this hypocritical way of thinking.

Kansas convicted three illegal aliens for identity theft based on fraudulent information they provided on federal and state tax returns while working in a restaurant. In comes the Kansas Supreme Court and vacates the conviction because it claims the states are preempted by immigration law from using the information on I-9 employment forms for non-immigration enforcement actions, as specified under 8 U.S.C. 1324a(b)(5). Kansas appealed this ruling to the Supreme Court in Kansas v. Garcia, and oral arguments were heard yesterday.

To begin with, the brazenness of open-borders groups is truly a sight to behold. These are the same people violating the heart and soul of the 1986 workplace enforcement bill by passing state laws in blue states granting illegal aliens driver’s licenses to go to work. These are the same people directly thwarting every federal immigration enforcement action, restricting information between law enforcement and ICE (a violation of 8 U.S.C. 1373), and doing everything in their power to induce, encourage, and shield illegal immigrants from detection (the very same section of law that is the subject of the Kansas case). They even criminalize enforcement of federal immigration laws! But they’re all in favor of federal immigration law prohibiting states from using I-9 information for sundry criminal enforcement actions.

To the merits of this case, while it is true that Congress wanted only the feds to be involved in I-9 enforcement, they never preempted states from using other sources, such as tax returns, to combat identity theft, as is the case in Garcia. There is nothing about the state law that creates an obstacle to the federal government enforcing immigration law, unlike, say, when a state restricts information sharing to ICE or denies detainers on criminal aliens. The feds can sentence an alien to up to five years in federal prison for fraudulent I-9s, while the state of Kansas authorizes up to seven months. If anything, by Kansas prosecuting identity theft, it is complementing the goal of the federal government to deter illegal alien employment. It’s no different from states prosecuting drug violators alongside the federal government.

Yet the Kansas Supreme Court and four Supreme Court justices yesterday seemed to indicate that they believe that, while Congress didn’t expressly preempt states from going after identity theft used for illegal employment through other means, there is “implied preemption.” Yep! The very people who believe that liberal states can ignore the feds in the face of the most unambiguously expressed preemption – to downright make legal what is illegal according to federal law and to facilitate the work of illegal aliens – suddenly believe in a strict application of implied preemption.

As on all the immigration cases before the Supreme Court this term, thanks to radical lower court rulings, we should be confident that the five GOP-appointed justices will rule the right way. But alas, we never know which one of the non-Thomas justices will take turns joining the Left. During oral arguments, all of the GOP-appointed justices seemed solid except for Kavanaugh. As Reuters reports, Kavanaugh gave Kansas Attorney General Derek Schmidt a hard time about the fact that the information on the I-9s and W-4 tax forms are always the same and why the states wouldn’t therefore be preempted from using the information. He didn’t seem to be concerned about the implication of the other side’s argument of blanket immunity for the states.



If you take this argument to its logical conclusion, that would mean that a state can never prosecute illegal aliens for any type of fraud, even outside of the context of illegal employment, because that information would also be contained in the I-9s. This would create blanket immunity for illegal aliens from state laws, clearly the opposite of the tenor of the 1986 law. It would work out that states have full latitude to enforce their identity theft laws against Americans but not against illegal aliens who steal Social Security numbers! That would likely be an unconstitutional infringement upon state powers over criminal law.

Remember, the workplace enforcement provision of the 1986 law was the enforcement part of the deal in exchange for amnesty of those who were already here illegally at the time.

Chris Hajec, director of litigation for the Immigration Reform Law Institute, told me he hopes Kavanaugh will not conclude along the line of questioning during oral arguments. “Justice Kavanaugh seemed to be concerned about field preemption, perhaps suggesting that the federal government had occupied the field of employment fraud by aliens, thus preventing Kansas from going after aliens for employment fraud using state identity theft laws,” said Hajec, whose organization filed an amicus brief siding with Kansas. “But hopefully he’ll conclude that Congress only occupied the field of fraud on a federal I-9 form, and so only intended to preempt states from prosecuting that kind of employment fraud.”

To be crystal clear, these are only oral arguments, and it’s very possible Kavanaugh was playing devil’s advocate but will rule another way. This happens all the time. But the fact that we never know where these much-vaunted conservative justices stand just demonstrates once again that GOP appointees are never going to be as ironclad as Democrat appointees are for their side. We don’t have five Clarence Thomases on the court and will never get them.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.