NO.

In the Supreme Court of the United States
STATE OF KANSAS,
v.

Petitioner,

RAMIRO GARCIA, DONALDO MORALES,
and GUADALUPE OCHOA-LARA,

Respondents.

On Petition for Writ of Certiorari to the
Supreme Court of the State of Kansas

PETITION FOR WRIT OF CERTIORARI
DEREK SCHMIDT
Attorney General of Kansas
JEFFREY A. CHANAY
Chief Deputy Attorney General
STEVE HOWE
District Attorney,
Johnson County, Kansas
JACOB M. GONTESKY
Assistant District Attorney

STEPHEN R. MCALLISTER
Solicitor General of Kansas
(Counsel of Record)
KRISTAFER AILSLIEGER
Deputy Solicitor General
NATALIE CHALMERS
Assistant Solicitor General
BRYAN C. CLARK
Assistant Solicitor General
DWIGHT R. CARSWELL
Assistant Solicitor General
120 S.W. 10th Ave., 2nd Floor
Topeka, KS 66612
(785) 296-2215
steve.mcallister@333law.com

Counsel for Petitioner State of Kansas
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

 i
QUESTIONS PRESENTED
In 1986, Congress enacted the Immigration Reform
and Control Act (IRCA). IRCA made it illegal to employ
unauthorized aliens, established an employment
eligibility verification system, and created various civil
and criminal penalties against employers who violate
the law. 8 U.S.C. § 1324a.
Regulations implementing IRCA created a “Form I9” that employers are required to have all prospective
employees complete—citizens and aliens alike. IRCA
contains an “express preemption provision, which in
most instances bars States from imposing penalties on
employers of unauthorized aliens,” Arizona v. United
States, 567 U.S. 387, 406 (2012), but IRCA “is silent
about whether additional penalties may be imposed
against the employees themselves.” Id. IRCA also
provides that “[the Form I-9] and any information
contained in or appended to such form, may not be used
for purposes other than enforcement of [chapter 12 of
Title 8] and sections 1001, 1028, 1546, and 1621 of Title
18.” 8 U.S.C. § 1324a(b)(5).
Here, Respondents used other peoples’ social
security numbers to complete documents, including a
Form I-9, a federal W-4 tax form, a state K-4 tax form,
and an apartment lease. Kansas prosecuted
Respondents for identity theft and making false
writings without using the Form I-9, but the Kansas
Supreme Court held that IRCA expressly barred these
state prosecutions.

 ii
This petition presents two questions, depending on
the answer to the first question:
1. Whether IRCA expressly preempts the States
from using any information entered on or appended to
a federal Form I-9, including common information such
as name, date of birth, and social security number, in
a prosecution of any person (citizen or alien) when that
same, commonly used information also appears in nonIRCA documents, such as state tax forms, leases, and
credit applications.
2. If IRCA bars the States from using all such
information for any purpose, whether Congress has the
constitutional power to so broadly preempt the States
from exercising their traditional police powers to
prosecute state law crimes.

 iii
TABLE OF CONTENTS
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATUTORY PROVISIONS INVOLVED . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 6
REASONS FOR GRANTING THE WRIT . . . . . . . 15
I.

The Kansas Supreme Court’s Holding and
Reasoning Conflict with Circuit and State
Decisions, as well as the Position the United
States Has Taken in Litigation. . . . . . . . . . . 16
A. The Kansas Supreme Court’s decision and
reasoning conflict with appellate decisions
from other jurisdictions. . . . . . . . . . . . . . 16
B. The United States Department of Justice
has taken the position that IRCA does not
expressly preempt the States from using
information obtained from a source other
than a Form I-9. . . . . . . . . . . . . . . . . . . . 23

II.

The Kansas Supreme Court’s Broad Reading
of IRCA Unnecessarily Raises Constitutional
Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. The Kansas Supreme Court’s decision
misreads IRCA and severely limits
traditional State authority. . . . . . . . . . . 25

 iv
1. The Kansas Supreme Court’s reading
of § 1324a(b)(5) cannot be squared
with the statutory language, the
section’s caption, or the structure of
IRCA. . . . . . . . . . . . . . . . . . . . . . . . . . 25
2. The Kansas Supreme Court’s decision
has sweeping effects that Congress
cannot possibly have intended. . . . . . 28
B. Application of the constitutional doubt
and clear statement canons would resolve
the express preemption argument in favor
of Kansas, and avoid constitutional
issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
III.

Identity Crime is a Problem that Far Exceeds
the Capacity of the United States Alone to
Prosecute. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
APPENDIX
Appendix A Opinion in the Supreme Court of the
State of Kansas
State of Kansas v. Ramiro Garcia
(September 8, 2017) . . . . . . . . . . . App. 1
Appendix B Memorandum Opinion in the Court of
Appeals of the State of Kansas
State of Kansas v. Ramiro Garcia
(January 29, 2016) . . . . . . . . . . . App. 48

 v
Appendix C Opinion in the Supreme Court of the
State of Kansas
State of Kansas v. Donaldo Morales
(September 8, 2017) . . . . . . . . . . App. 61
Appendix D Memorandum Opinion in the Court of
Appeals of the State of Kansas
State of Kansas v. Donaldo Morales
(January 8, 2016) . . . . . . . . . . . . App. 71
Appendix E Transcript of Proceedings (excerpts) in
the District Court of Johnson County,
Kansas, Tenth Judicial District
Criminal Court Department
State of Kansas v. Donaldo Morales
(September 28, 2012) . . . . . . . . . App. 83
Appendix F Opinion in the Supreme Court of the
State of Kansas
State of Kansas v. Guadalupe OchoaLara
(September 8, 2017) . . . . . . . . . . App. 88
Appendix G Opinion in the Court of Appeals of the
State of Kansas
State of Kansas v. Guadalupe OchoaLara
(November 25, 2015) . . . . . . . . . App. 97
Appendix H Transcript
of
Motion Hearing
(excerpts) in the District Court of
Johnson County, Kansas, Criminal
Court Department
State of Kansas v. Guadalupe OchoaLara
(April 2, 2013) . . . . . . . . . . . . . App. 113

 vi
TABLE OF AUTHORITIES
CASES
Arizona v. United States,
567 U.S. 387 (2012) . . . . . . . . . . . . . . . . . . . . . . 13
Bond v. United States,
134 S. Ct. 2077 (2014) . . . . . . . . . . . . . . 30, 31, 32
Chamber of Commerce of the United States v.
Whiting,
563 U.S. 582 (2011) . . . . . . . . . . . . . . . . . . . . . . 11
Escambia County v. McMillan,
466 U.S. 48 (1984) . . . . . . . . . . . . . . . . . . . . . . . 31
Gonzalez v. Raich,
545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 33
Gregory v. Ashcroft,
501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . 31
Jones v. United States,
529 U.S. 848 (2000) . . . . . . . . . . . . . . . . . . . . . . 33
Puente Arizona v. Arpaio,
821 F.3d 1098 (9th Cir. 2016) . . . . . 16, 17, 18, 23
Puente Arizona v. Arpaio,
No. CV-14-01356, 2017 WL 1133012 (D. Ariz.
March 27, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Diaz-Rey,
397 S.W.3d 5 (Mo. App. 2013) . . . . . . . . . . . 22, 23
State v. Garcia,
401 P.3d 588 (Kan. 2017) . . . . . . . . . . . . . . passim

 vii
State v. Martinez,
896 N.W.2d 737 (Iowa 2017) . . . . . . . . . . . passim
State v. Mayze,
622 S.E.2d 836 (Ga. 2005) . . . . . . . . . . . . . . . . . 36
State v. Morales,
401 P.3d 155 (Kan. 2017) . . . . . . . . . . . . . . passim
State v. Ochoa-Lara,
401 P.3d 159 (Kan. 2017) . . . . . . . . . . . . . . passim
State v. Reynua,
807 N.W.2d 473 (Minn. App. 2011) . . . . . . . 21, 22
Taylor v. United States,
136 S. Ct. 2074 (2016) . . . . . . . . . . . . . . . . . 31, 32
United States v. Bass,
404 U.S. 336 (1971) . . . . . . . . . . . . . . . . . . . . . . 32
United States v. Lopez,
514 U.S. 549 (1995) . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Quality Stores,
134 S. Ct. 1395 (2014) . . . . . . . . . . . . . . . . . . . . 27
Yates v. United States,
135 S. Ct. 1074 (2015) . . . . . . . . . . . . . . . . . 26, 27
STATUTES
8 U.S.C. § 1324a . . . . . . . . . . . . . . . . . . . . . . . . . 2, 27
8 U.S.C. § 1324a(b)(5) . . . . . . . . . . . . . . . . . . . passim
8 U.S.C. § 1324a(h)(2) . . . . . . . . . . . . . . . 2, 11, 22, 27
28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Kan. Stat. Ann. § 21-3711 . . . . . . . . . . . . . . . . . . . 6, 8

 viii
Kan. Stat. Ann. § 21-3830 . . . . . . . . . . . . . . . . . . . . . 5
Kan. Stat. Ann. § 21-4018 . . . . . . . . . . . . . . . . . . . 5, 8
Kan. Stat. Ann. § 21-5824 . . . . . . . . . . . . . . . . . . . . . 6
Kan. Stat. Ann. § 21-5918 . . . . . . . . . . . . . . . . . . . . . 5
Kan. Stat. Ann. § 21-6107 . . . . . . . . . . . . . . . 3, 5, 7, 9
Sup. Ct. R. 12.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
OTHER AUTHORITIES
Brief of the United States, Puente Arizona v.
Arpaio, 821 F.3d 1098 (Nos. 15-15211, 15-15213,
15-15215), 2016 WL 1181917 . . . . . . . . . . . . . . 24
Seena Gressin, The Equifax Data Breach: What to
do, https://www.consumer.ftc.gov/
blog/2017/09/equifax-data-breach-what-do . . . . 34
IDENTITY THEFT RESOURCE CENTER, Identity Theft:
The Aftermath 2016, https://www.idtheftcenter.
org/images/page-docs/ AftermathFinal_2016.pdf
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
INSURANCE INFORMATION INSTITUTE, Facts +
Statistics: Identity theft and cybercrime,
https://www.iii.org/fact-statistic/facts-statisticsidentity-theft-and-cybercrime . . . . . . . . . . . . . . 34
NAT’L CONFERENCE OF STATE LEGISLATURES,
Identity Theft http://www.ncsl.org/research/
financial-services-and-commerce/identity-theftstate-statutes.aspx . . . . . . . . . . . . . . . . . . . . . . . 35

 ix
Patricia Oliver, What’s [the] most dangerous kind of
identity theft?, USA TODAY, https://www.
usatoday.com/story/money/personalfinance/2015/
03/15/credit-dotcom-dangerous-identitytheft/70136996/ . . . . . . . . . . . . . . . . . . . . . . . . . 34
PRIVACY RIGHTS CLEARINGHOUSE, https://www.
privacyrights.org/data-breaches . . . . . . . . . . . . 34
U.S. DEPT. OF JUSTICE, BUREAU OF STATISTICS,
Victims of Identity Theft (2014),
https://www.bjs.gov/index.cfm?ty=pbdetail&iid
=5408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

 1
PETITION FOR WRIT OF CERTIORARI
The State of Kansas respectfully petitions for a writ
of certiorari to review the judgment of the Supreme
Court of Kansas in three cases decided the same day
and involving “identical or closely related [federal]
questions.” Sup. Ct. R. 12.4.
OPINIONS BELOW
The Kansas Supreme Court’s opinion reversing
Respondent Ramiro Garcia’s identity theft conviction is
reported in State v. Garcia, 401 P.3d 588 (Kan. 2017),
and reprinted at Pet. App. 1-47. The Kansas Supreme
Court’s opinion reversing Respondent Donaldo Morales’
convictions for identity theft and making false writings
is reported in State v. Morales, 401 P.3d 155 (Kan.
2017), and reprinted at Pet. App. 61-70. The Kansas
Supreme Court’s opinion reversing Respondent
Guadalupe Ochoa-Lara’s identity theft conviction is
reported in State v. Ochoa-Lara, 401 P.3d 159 (Kan.
2017), and reprinted at Pet. App. 88-96. The Kansas
Supreme Court’s opinion in Garcia, along with the
concurrence and the dissents, are the main opinions,
with short opinions in Morales and Ochoa-Lara that
adopt the reasoning in the Garcia opinions.
The Kansas Court of Appeals’ unpublished decision
affirming Garcia’s conviction is located at 364 P.3d
1221 (Table), 2016 WL 368054 (Kan. Ct. App. 2016),
and reprinted at Pet. App. 48-60. The Kansas Court of
Appeals’ unpublished decision affirming Morales’
conviction is located at 364 P.3d 305 (Table), 2016 WL
97848 (Kan. Ct. App. 2016), and reprinted at Pet. App.
71-82. The Kansas Court of Appeals’ published decision
affirming Ochoa-Lara’s conviction is located at 362

 2
P.3d 606 (Kan. Ct. App. 2015), and reprinted at Pet.
App. 97-112.
JURISDICTION
The Supreme Court of Kansas issued its opinions on
September 8, 2017. This Court has jurisdiction under
28 U.S.C. § 1257(a).
STATUTORY PROVISIONS INVOLVED
The central provisions of the Immigration Reform
and Control Act of 1986 are contained in 8 U.S.C.
§ 1324a. Subsection (b)(5) states:
Limitation on use of attestation form
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
enforcement of this chapter and sections 1001,
1028, 1546, and 1621 of Title 18.
8 U.S.C. § 1324a(h)(2) provides:
Preemption
The provisions of this section preempt any State
or local law imposing civil or criminal sanctions
(other than through licensing and similar laws)
upon those who employ, or recruit or refer for a
fee for employment, unauthorized aliens.

 3
The relevant portion of Kan. Stat. Ann. § 21-6107,
titled “Identity Theft/Identity Fraud,” under which
Respondents Garcia and Ochoa-Lara were charged,
provides:
(a)

Identity theft is obtaining, possessing,
transferring, using, selling or purchasing
any personal identifying information, or
document containing the same, belonging
to or issued to another person, with the
intent to:
(1)

Defraud that person, or anyone
else, in order to receive any benefit;
or

(2)

Misrepresent that person in order
to subject that person to economic
or bodily harm.

Kan. Stat. Ann. § 21-6107 defines “personal
identifying information” as follows:
(e)

As used in this section:
(2)

“personal identifying information”
includes, but is not limited to, the
following:

(A)

Name;

(B)

birth date;

(C)

address;

(D)

telephone number;

 4
(E)

driver’s license number or card or
nondriver’s identification number
or card;

(F)

social security number or card;

(G)

place of employment;

(H)

employee identification numbers or
other personal identification
numbers or cards;

(I)

mother’s maiden name;

(J)

birth,
death
certificates;

(K)

electronic identification numbers;

(L)

electronic signatures;

(M)

any financial number, or password
that can be used to access a
person’s financial resources,
including, but not limited to,
checking or savings accounts,
credit or debit card information,
demand deposit or medical
information; and

(N)

passwords, usernames or other login information that can be used to
access a person’s personal
electronic content, including, but
not limited to, content stored on a
social networking website . . . .

or

marriage

 5
The relevant portion of Kan. Stat. Ann. § 21-4018,
titled “Identity Theft/Identity Fraud,” under which
Respondent Morales was charged,1 provides:
(a)

Identity theft is knowingly and with
intent to defraud for any benefit,
obtaining, possessing, transferring, using
or attempting to obtain, possess, transfer
or use, one or more identification
documents or personal identification
number of another person other than that
issued lawfully for the use of the
possessor.

(b)

“Identification documents” has the
meaning provided in K[an]. S[tat]. A[nn].
[§] 21-3830, and amendments thereto.

Kan. Stat. Ann. § 21-38302 defines “Identification
documents” as follows:
(c)

As used in this section, “identification
document” means any card, certificate or
document or banking instrument
including, but not limited to, credit or
debit card, which identifies or purports to
identified the bearer of such document,
whether or not intended for use as

1

Effective July 1, 2011, as part of a comprehensive recodification
of Kansas’ criminal code, Kan. Stat. Ann. § 21-4018 was rewritten
and renumbered as Kan. Stat. Ann. § 21-6107. Respondent
Morales was charged for conduct occurring before July 1, 2011.
2

This statute was also recodified in 2011 as Kan. Stat. Ann. § 215918.

 6
identification, and includes, but is not
limited to, documents purporting to be
drivers’ licenses, nondrivers’ identification
cards, certified copies of birth, death,
marriage and divorce certificates, social
security cards and employee identification
cards.
The relevant portion of Kan. Stat. Ann. § 21-3711,
titled “Making a False Writing,” under which
Respondent Morales was charged,3 provides:
Making a false information is making,
generating, distributing or drawing, or causing
to be made, generated, distributed or drawn, any
written instrument, electronic data or entry in a
book of account with knowledge that such
information falsely states or represents some
material matter or is not what it purports to be,
and with intent to defraud, obstruct the
detection of a theft or felony offense or induce
official action.
STATEMENT OF THE CASE
In three separate cases, State v. Garcia, State v.
Morales, and State v. Ochoa-Lara, the Kansas Supreme
Court held that IRCA preempts the application of state
identity theft, identity fraud and making a false
writing laws whenever any of the information
necessary for the prosecution is contained in or
appended to a Form I-9, even when the State
3

As with the other charge relating to Respondent Morales, this
statute was recodified, effective July 1, 2011, as Kan. Stat. Ann.
§ 21-5824.

 7
prosecutes for use of that very same information in
non-IRCA documents. In accordance with Supreme
Court Rule 12.4, the State of Kansas petitions this
Court for a writ of certiorari to the Kansas Supreme
Court in all three cases, as each case involves the
identical questions presented.
1. State v. Garcia: Ramiro Garcia was stopped for
speeding in Overland Park, Kansas. When asked why
he was in such a hurry, Garcia replied that he was on
his way to work at Bonefish Grill. A records check on
Garcia revealed that he was already the subject of an
investigation and therefore a day later a police
detective contacted Bonefish Grill and obtained some of
Garcia’s employment documents, including his federal
Form I-9. Further investigation revealed that Garcia
had used the social security number of a woman
residing in Texas on the Form I-9, as well as on federal
and state tax forms. Pet. App. 3.
Garcia was charged with identity theft in violation
of Kan. Stat. Ann. § 21-6107. Garcia moved to suppress
the Form I-9 and all other forms—state and
federal—that contained any of the same information,
arguing that IRCA preempted any use by the State of
the Form I-9 itself and any of the information it
contained. The State agreed not to use the Form I-9 as
a basis of prosecution, but argued that it could use
federal and state tax forms that contained some of the
same information. The trial court agreed with the
State. Pet. App. 3-4.
At trial, the State presented evidence that Garcia
used the social security number of another person to
complete both the federal W-4 tax form and the Kansas

 8
counterpart K-4 tax form. A jury found Garcia guilty of
identity theft under Kansas law. Pet. App. 4-7.
2. State v. Morales: Joseph Espinosa, a special agent
with the Social Security Administration, received
information from the Kansas Department of Labor of
an irregularity regarding a social security number
being used by an employee at a Jose Pepper’s
restaurant. Espinosa investigated and determined that
Donaldo Morales was using a social security number
not issued to him, but rather to another person. During
his investigation, Agent Espinosa reviewed Morales’
employment file which included a copy of a social
security card, Morales’ employment application, federal
and state tax forms (W-4 and K-4), and a federal Form
I-9. Morales admitted to agent Espinosa that he
purchased the social security card “so that he could
work.” Pet. App. 63-64.
Morales was charged with one count of identity
theft in violation of Kan. Stat. Ann. § 21-4018 for using
a social security number issued to another person, and
two counts of making a false writing in violation of
Kan. Stat. Ann. § 21-3711—one each for writing a false
social security number on the W-4 and K-4 forms (a
third count of making a false writing related to the
Form I-9 was dismissed by the prosecution before
trial). Following a bench trial, he was convicted of all
three counts. Pet. App. 63-64.
3. State v. Ochoa-Lara: While attempting to contact
Christian Ochoa-Lara, local police officers and
Department of Homeland Security Immigrations and
Customs Enforcement agents went to an apartment
complex in Overland Park, Kansas. There they learned
the apartment in question was leased to Guadalupe

 9
Ochoa-Lara. Officers obtained a copy of the lease and
determined Guadalupe Ochoa-Lara used a social
security number issued to another individual—Tiffany
McFarland—to lease the apartment. Officers contacted
McFarland, who said she had no knowledge her social
security number was being used by another person and
did not consent to it being so used. McFarland later
reported that she contacted the Internal Revenue
Service and was notified that income had been reported
under her social security number which she had not
earned. Pet. App. 91.
Police officers determined that Guadalupe OchoaLara was employed at a steakhouse in Lenexa, Kansas.
Officers reviewed the Form W-4 that Ochoa-Lara had
completed and observed he used the social security
number issued to McFarland. The investigators learned
that Ochoa-Lara did not have a social security number
lawfully issued to him. Following a bench trial, OchoaLara was convicted of two counts of identity theft in
violation of Kan. Stat. Ann. § 21-6107. Pet. App. 91-92.
4. The Kansas Court of Appeals Decisions: All three
defendants appealed to the Kansas Court of Appeals.
The defendants argued that IRCA preempts the use of
any information contained on a federal Form I-9 for
any purpose not specified under IRCA, even if that
same information appears on documents other than an
I-9. The defendants’ argument necessarily included
name, address, social security number, and other
commonly used identifying information. The Court of
Appeals easily concluded that IRCA did not preempt
the state prosecutions. See, e.g., State v. Ochoa-Lara,
Pet. App. 106 (“There is nothing in the [IRCA]
preemption language that prohibits the State from

 10
proving identity theft by using information from
sources other than the I-9 form, even though that
information may also be contained on the I-9 form and
the documents appended thereto.”). Thus, three
separate panels of the Kansas Court of Appeals
rejected the defendants’ preemption arguments and
affirmed the convictions in State v. Ochoa-Lara, Pet.
App. 97-112; State v. Garcia, Pet. App. 48-60; and State
v. Morales, Pet. App. 71-82.
5. The Kansas Supreme Court Decisions: The
Kansas Supreme Court granted review in all three
cases, and a four-Justice majority of the court reversed
each defendant’s convictions as follows:
a. State v. Garcia: The majority concluded that
IRCA preempts the application of state identity theft
and identity fraud laws whenever any of the
information necessary for the prosecution is contained
in or appended to a Form I-9, even if the State
prosecutes for use of that very same information in
documents unrelated to IRCA. The majority considered
whether a “presumption against preemption” should
apply to its analysis. After briefly reviewing several
opinions of various members of this Court addressing
that question, the majority held “it is unnecessary to
apply a presumption against preemption when a court
evaluates the merit of an express preemption claim, as
long as the language of the congressional enactment at
issue is clear.” Pet. App. 13-16.
After briefly explaining the IRCA scheme and the
federal government’s creation of the Form I-9 for
employers to use to verify job applicants’ immigration
status, the majority quoted 8 U.S.C. § 1324a(b)(5):

 11
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 [chapter 12 of Title 8] and
sections 1001, 1028, 1546, and 1621 of Title 18.
Pet. App. 19 (emphasis in original). The majority then
quoted at length from Puente Arizona v. Arpaio,
No. CV-14-01356, 2017 WL 1133012 (D. Ariz. March
27, 2017), regarding the possible effect of this provision
when a state prosecution utilizes non-IRCA documents,
such as state tax forms, that contain information that
also appears on a Form I-9.
Ultimately, the majority relied on an “express
preemption” analysis to conclude that 8 U.S.C.
§ 1324a(b)(5),4 by its “plain and unambiguous”
language preempts states from using any information
contained in a Form I-9 in a state prosecution, even if
the information was obtained from other sources:
“Although the State did not rely on the I-9, it does not
follow that the State’s use of the Social Security card

4

Notably, the majority described 8 U.S.C. § 1324a(b)(5) as an
“effective” express preemption provision, essentially
acknowledging that on its face this provision does not purport to
“preempt” anything. The provision never uses the word “preempt”
or “preemption,” in sharp contrast to 8 U.S.C. § 1324a(h)(2), which
states: “The provisions of this section preempt any State or local
law imposing civil or criminal sanctions (other than through
licensing and similar laws) upon those who employ, or recruit or
refer for a fee for employment, unauthorized aliens.” See also Pet.
App. 29-30 (Luckert, J., concurring). Cf. Chamber of Commerce of
the United States v. Whiting, 563 U.S. 582 (2011) (IRCA’s express
preemption provision does not preempt a state licensing scheme).

 12
information was allowed by Congress.” Pet. App. 28.
Observing that the “key question” for determining
preemption “is congressional intent,” the majority
opined that “intent is spelled out for us in 8 U.S.C.
§ 1324a(b)(5): States are prohibited from using the I-9
and any information contained within the I-9 as the
bases for a state law identity theft prosecution . . . .”
Pet. App. 28 (emphasis in original).
b. State v. Morales: The same Kansas Supreme
Court majority reversed Morales’ convictions,
declaring: “Our Garcia holding controls the outcome of
this case and compels a decision in Morales’ favor,
reversing all of his convictions.” Pet. App. 67. After
discussing an issue not relevant to this petition, the
Kansas court concluded:
In reliance on Garcia, we reverse defendant
Donaldo Morales’ convictions on one count of
identity theft and two counts of making a false
information. His prosecution based on his use of
a Social Security number belonging to another
person for employment was expressly preempted
by 8 U.S.C. § 1324a(b)(5).
Pet. App. 69 (internal citations omitted).
c. State v. Ochoa-Lara: The same Kansas Supreme
Court majority reversed Ochoa-Lara’s convictions:
Our decision today in Garcia holds that State
prosecutions such as the one in this case are
expressly preempted by IRCA. . . . This State
prosecution for identity theft relied on the Social
Security number Ochoa-Lara included in the I-9
to ensure employment eligibility under federal
law. Our Garcia holding recognized that this is

 13
exactly the situation Congress intended to
address and control under federal law. Garcia
dictates the outcome of this case and compels a
decision in Ochoa-Lara’s favor, reversing all of
his convictions.
Pet. App. 92-93 (internal citation omitted).
6. Concurring and Dissenting Opinions: One Justice
concurred, but argued field preemption applies here,
not express preemption. Two Justices (in two separate
opinions) dissented, arguing there is no preemption.
a. Justice Luckert concurred, but rejected the
majority’s reliance on express preemption. She found
that rationale foreclosed by this Court’s statement in
Arizona v. United States, 567 U.S. 387, 406 (2012), that
“IRCA’s express preemption provision, which in most
instances bars States from imposing penalties on
employers of unauthorized aliens, is silent about
whether additional penalties may be imposed against
the employees themselves.” Pet. App. 29-30. After
describing the IRCA regime at some length, Justice
Luckert concluded that “Congress has occupied the
field, and prohibited the use of false documents,
including those using the identity of others, when an
unauthorized alien seeks employment.” Thus, “under
the doctrine of field preemption, the State cannot
prosecute Garcia . . . .” Pet. App. 35-36.
b. Justice Biles dissented, arguing there is no
preemption because, for the state identity theft
prosecution, “Garcia’s immigration status was not
relevant to whether this conduct was unlawful, and the
conduct was independent of the federal employer
verification system.” Pet. App. 39. Observing that the

 14
majority’s view that § 1324a(b)(5) “applies literally to
all information on the Form I-9, wherever else it might
be found” is untenable, he argued that the provision
applies “more narrowly” to only “the contents of the
completed Form I-9.” Pet. App. 40.
Justice Biles emphasized that Garcia was not
prosecuted for falsifying his I-9 to secure employment,
but instead for using “another person’s Social Security
number on tax withholding forms.” Pet. App. 40. With
respect to implied preemption, Justice Biles relied on
the presumption against preemption and the “sweeping
potential impact of the majority’s rationale” to tip the
balance in the State’s favor. Pet. App. 45.
c. Justice Stegall also dissented. He recognized that
Congress, when acting within its constitutional powers,
has the authority to preempt state law. But, “as a first
principle, Congress cannot preempt state law in
matters that lie outside Congress’ limited, prescribed
powers.” Pet. App. 46. Even if the majority was correct
that “Congress intended to expressly preempt state use
of all information contained in a person’s I-9 form, it is
doubtful Congress has such sweeping powers to
interfere with the legitimate government of the states.”
Pet. App. 46.
He then posed the question: “Can it really be true
that the state of Kansas is or could be expressly
preempted from using—for any purpose—the name of
any citizen who has completed an I-9 form?” A “name
is ‘information’ after all. To ask the question is to
answer it.” Indeed, “[i]f such a power did exist, the
delicate federal-state balance achieved by our system
of federalism would not merely be disturbed, it would
be obliterated.” Pet. App. 46 (emphasis in original).

 15
The concurring and dissenting Justices adopted
these same positions in State v. Morales and State v.
Ochoa-Lara by referencing their opinions in State v.
Garcia. Pet. App. 69-70, 95-96.
REASONS FOR GRANTING THE WRIT
The Kansas Supreme Court’s decision has sweeping
impact, because virtually everyone—citizens, lawful
aliens, and unauthorized aliens—must complete a
Form I-9 when seeking employment. To say that no one
can be prosecuted under state law whenever any
information necessary to the prosecution happens to
appear on or is appended to a Form I-9 is a result not
required by the language of IRCA, and a conclusion
that defies common sense. Such a holding also leads to
serious constitutional questions about the scope of
congressional power to override the States’
traditionally broad police power to enact criminal laws,
including laws that prohibit and punish identity theft
and making a false writing.
The statutory preemption question presented here
has arisen several times in recent years and will
continue to arise, especially as identity theft and
identity fraud become ever more ubiquitous crimes the
States seek to prosecute. This case presents a
procedurally clean vehicle for the Court to resolve the
important issues here, and there is a sufficient body of
lower court law to provide the Court with more than
adequate context in which to decide the questions.
Plenary review is warranted in this case.

 16
I.

The Kansas Supreme Court’s Holding and
Reasoning Conflict with Circuit and State
Decisions, as well as the Position the
United States Has Taken in Litigation.

The Court should grant review because the Kansas
Supreme Court’s decision reaches a result in conflict
with decisions of Circuits and state courts of last
resort. Moreover, the Kansas Supreme Court’s reliance
on “express” preemption has been rejected by every
other court to consider it, and by the United States
Department of Justice, which has declined even to
make such an argument in this context.
A. The Kansas Supreme Court’s decision
and reasoning conflict with appellate
decisions from other jurisdictions.
The Kansas Supreme Court is by no means the first
appellate court to consider preemption questions under
IRCA. Several courts have construed IRCA more
narrowly than the Kansas court. And none have
embraced or agreed with the “express” preemption
rationale of the Kansas court.
1. In Puente Arizona v. Arpaio, 821 F.3d 1098 (9th
Cir. 2016), the Ninth Circuit considered a similar
challenge to Arizona’s identity theft statute. Contrary
to the Kansas Supreme Court, however, the Ninth
Circuit easily and emphatically rejected the argument
that the text of IRCA “expressly” preempted the
Arizona statute.
The Arizona statute targeted identity theft “with
the intent to obtain employment.” The challengers
argued that such a law was facially preempted, i.e.,

 17
preempted in all its applications. The District Court
agreed and granted an injunction on that basis.
But the Ninth Circuit reversed, and vacated the
injunction. The Ninth Circuit recognized that such laws
“are not facially preempted because they have obvious
constitutional applications.” Id. at 1104. The court
found “it significant that the identity theft laws are
textually neutral—that is, they apply to unauthorized
aliens, authorized aliens, and U.S. citizens alike.” Id. at
1105.
Turning first to the challengers’ conflict preemption
arguments,5 the Ninth Circuit identified “the crucial
question [as] whether Congress intended to preempt
the identity theft laws given the practical effect of
those laws. We think not.” Id. at 1106. The Ninth
Circuit acknowledged that, although “some
applications of the identity theft laws may come into
conflict with IRCA’s ‘comprehensive scheme,’” IRCA
does not invalidate such laws in their entirety or
facially. Instead, “Arizona exercised its police powers to
pass criminal laws that apply equally to unauthorized
aliens, authorized aliens, and U.S. citizens.” Id. at
1107.
Lastly, the Ninth Circuit rejected the very
argument the Kansas Supreme Court majority
embraced: “Finally, Puente makes an argument for
5

The order in which the court discussed express and implied
preemption (i.e., implied first and express last) suggests both that
the Ninth Circuit viewed the “express” argument as weak and
easily rejected, and that the challengers themselves did not believe
the argument had much chance. The challengers instead relied
primarily on implied preemption arguments.

 18
preemption based on the text of IRCA.” Id. at 1108.
“Again, we reject this argument . . . . IRCA’s document
use limitation is only violated when the identity theft
laws are applied in ways that rely on the Form I-9 and
attached documents. . . . Arizona retains the power to
enforce the laws in ways that do not implicate federal
immigration priorities.” Id.
2. The Iowa Supreme Court also recently wrestled
with these issues, with mixed results. In State v.
Martinez, 896 N.W.2d 737 (Iowa 2017), the defendant,
an unauthorized alien, was prosecuted under Iowa
identity theft and forgery statutes for using a false
birth certificate to obtain an Iowa driver’s license,
which in turn she used to obtain employment. The
defendant moved to dismiss the charges on the ground
IRCA preempted them, but the trial court denied her
motion.
A majority of the Iowa Supreme Court reversed,
concluding that to the extent the Iowa laws addressed
identity theft or forgery in the employment context,
they were “the mirror image of federal immigration”
laws, and “[s]uch mirror-image statutes are preempted
by federal law.” Id. at 754.
The majority’s analysis hinged on whether the Iowa
law was being used to punish obtaining employment, or
instead punishing other crimes. The majority
acknowledged that “identity theft to defraud a bank by
an unauthorized alien would not be preempted by
federal law and prosecution of an alien for such a crime
would be well within the traditional police power of the
states.” Id. at 755. The majority also appeared to hold
that IRCA preemption would have no application to
U.S. citizens: “many persons may be prosecuted under

 19
the statute who are not aliens but are United States
citizens.” Id. But here, “the only factual basis” for the
prosecution “is the allegation that Martinez obtained
unauthorized employment.” Id. (emphasis in original).
Thus, the majority concluded that the Iowa statutes
were precluded by both field and obstacle preemption.
Two justices of the court concurred, emphasizing what
they viewed as the “conflict” here between federal and
state law, given that the only basis for the state
prosecution was that the defendant used a false
document to obtain employment. Id. at 757 (Cady, C.J.,
concurring); id. at 760 (Wiggins, J., concurring). None
of the opinions relied on—or even attempted to rely
on—the “express” preemption rationale the Kansas
Supreme Court embraced.
Justice Mansfield dissented, arguing that the “court
has established an exemption from a generally
applicable Iowa law for the exclusive benefit of
unauthorized aliens seeking employment in our state.”
Id. at 761. Indeed, the dissent observed:
Under the majority’s ruling, an American citizen
who works in Iowa under a false name because
she is being chased by a bill collector and wants
to avoid garnishment can be prosecuted, but a
foreign national who works in Iowa under a false
name to avoid detection is immune.
Id. As the dissent correctly concluded, “[t]hat is the
wrong reading of federal preemption.” Id. In fact, the
Kansas Supreme Court’s decision has even more
dramatic effect by precluding the prosecution of
anyone—alien (authorized or not) and citizen
alike—who uses another’s personal identifying

 20
information on an employment application, state tax
form, or other writing when that information also just
so happens to appear on a Form I-9.
The dissenting judge stated he was “unaware of any
other court that has so held.” Id. at 762. After
reviewing appellate decisions from other jurisdictions
(all discussed in this petition), the dissent observed
that “three reported appellate cases, one federal and
two state, have addressed our situation. None of them
agrees with today’s ruling.” Id. at 764.
Lastly, the dissent considered and rejected the
“express” preemption rationale the Kansas Supreme
Court adopted. The dissent observed that the word
“use” in § 1324a(b)(5) “is an inherently ambiguous
term,” and that, “[i]n context,” the statute “establishes
an evidentiary bar on the use of I-9 paperwork other
than in certain enumerated federal prosecutions.” Id.
at 767-68. The dissent concluded that if “Congress had
intended the I-9 and attachments to be totally off-limits
to federal and state agencies other than for the listed
federal prosecutions it would have worded the statute
much differently—i.e., as a limitation on disclosure.”
Id. at 768 (emphasis in original).
To emphasize that conclusion, the dissent offered a
hypothetical that flowed from the majority’s ruling:
For example, . . . it would be unlawful for the
FBI to obtain an employee’s I-9 and attachments
from an employer in the course of a terrorism
investigation of that employee, because the
offenses under consideration were not listed in
section 1324a(b)(5).

 21
Id. at 768. Not surprisingly, the dissent opined: “That
seems absurd to me.” Id.
Finally, the dissent rejected the “express”
preemption argument, declaring that “so long as [the
State] does not rely on the I-9 paperwork retained by
the employer,” it may prosecute. Moreover, the
defendant “concedes that ‘[t]here is probably not
express preemption’ in this case,” and “the court today
does not rely on express preemption.” Id. at 768.
3. Two other state appellate decisions have
addressed the issues presented here, and both have
rejected claims that IRCA preempted state
prosecutions. In State v. Reynua, 807 N.W.2d 473
(Minn. App. 2011), a defendant was convicted of
forgery, perjury, and fraudulent certificate of title, after
police discovered the defendant had a Minnesota
identification card and two certificates of title for
vehicles with false names. As part of their
investigation, police had obtained the defendant’s Form
I-9 from her employer. The defendant argued the state
charges were barred by IRCA because information
supporting those charges was included in or provided
in support of her Form I-9.
On appeal, the State conceded that it could not rely
on the Form I-9 itself. The appellate court thus
considered whether the State was barred from using
the defendant’s false Minnesota identification card as
evidence because she also submitted that card to her
employer with her Form I-9.
The court declared that “we cannot read this
provision [§ 1324a(b)(5)] so broadly as to preempt a
state from enforcing its own laws relating to its own

 22
identification documents.” 807 N.W.2d at 480-81. Thus,
“the state, for example, is not barred from prosecuting
the crime of display or possession of a fictitious or
fraudulently altered Minnesota identification card,
merely because that card has been presented in
support of an I-9.” Id. at 481. Instead, so long as the
State’s proof does not rely on the Form I-9 itself, there
is no preemption. Because the Minnesota prosecution
for the false identification card and fraudulent
certificates of title did not rely on the I-9, those
convictions were valid, and not preempted. Id. at 482.
Similarly, in State v. Diaz-Rey, 397 S.W.3d 5 (Mo.
App. 2013), a Missouri appellate court took perhaps the
strongest position rejecting claims that IRCA
preempted a state prosecution for forgery when a
defendant submitted a false social security number on
an employment application (separate from the Form I9). The Missouri court observed that IRCA has an
express preemption provision, § 1324a(h)(2), which only
preempts state sanctions on “those who employ, or
recruit or refer for a fee for employment, unauthorized
aliens.” Thus, the Missouri forgery statute was “not
expressly preempted by IRCA because it does not
sanction those who employ, recruit, or offer for
employment unauthorized aliens.” 397 S.W.3d at 8-9.
The Missouri court then rejected a field preemption
claim, pointing out the Missouri forgery statute “is a
state law of general applicability that uniformly applies
to all persons as members of the general public, and
makes no distinction between aliens and non-aliens.”
Id. at 9. Last, the Missouri court rejected a conflict
preemption claim, finding the Missouri statute “does
not criminalize activity that Congress has decided not

 23
to criminalize.” Thus, Missouri law “does not stand as
an obstacle to Congress’s purpose in enacting IRCA.”
Id. at 10.
These cases more than demonstrate that the
questions presented here are recurring, important, and
have resulted in disparate decisions in the lower
courts. Importantly, no lower court has embraced the
“express” preemption analysis the Kansas Supreme
Court adopted, and several have explicitly and
emphatically rejected that analysis. Moreover, no other
appellate court has interpreted the evidentiary bar of
§ 1324a(b)(5) nearly as broadly as the Kansas Supreme
Court did in these cases. For these reasons alone, the
Kansas decisions merit this Court’s review.
B. The United States Department of
Justice has taken the position that IRCA
does not expressly preempt the States
from using information obtained from a
source other than a Form I-9.
The lower courts are not the only government
institutions that have rejected the Kansas Supreme
Court’s “express” preemption analysis and the
sweeping result in this case. In the Puente Arizona v.
Arpaio case in the Ninth Circuit (discussed above), the
United States Department of Justice filed a brief as
amicus curiae in support of neither party. The United
States explicitly disavowed reliance on the notion of
express preemption, including the precise rationale the
Kansas Supreme Court adopted here. The United
States conceded that “[s]ection 1324a(b)(5), considered
on its own, would not preclude a state from relying on
the same information taken from another source—e.g.,
from ‘employment applications, state payroll tax forms,

 24
credit release forms, direct deposit forms and other
documents not covered by the federal Form I-9
process.’” Brief of the United States, Puente Arizona v.
Arpaio, 821 F.3d 1098 (Nos. 15-15211, 15-15213, 1515215), 2016 WL 1181917, at *14 (quoting Arizona’s
brief) (emphasis added).
Instead, the United States took the position that the
preemptive effect, if any, of § 1324a(b)(5) is to be
determined by resort to implied preemption principles,
in particular “obstacle” preemption. Id. at *14-21.
Analyzing those principles, the United States
concluded: “The regulation of theft, including identity
theft, ordinarily falls within the State’s traditional
police powers.” Id. at *22. Thus, “state laws
criminalizing types of identity theft unrelated to
federal immigration law are no more subject to
preemption than are state laws criminalizing other
conduct that also is prohibited by federal law, e.g.,
bank robbery or drug offenses.” Id. at *23.
According to the United States, “[t]here is no
evidence that Congress intended to preempt state laws
criminalizing instances of identity theft that do not
implicate federal immigration prerogatives.” Id. at *23
(emphasis added). The Kansas Supreme Court’s
decision is thus at odds with the legal position the
United States has taken. For that reason as well, this
case merits the Court’s plenary review, with an
opportunity for the United States to brief and
articulate its position on IRCA preemption.

 25
II.

The Kansas Supreme Court’s Broad
Reading of IRCA Unnecessarily Raises
Constitutional Questions.

Review also is warranted because the Kansas
Supreme Court’s broad interpretation of § 1324a(b)(5)
unnecessarily raises serious constitutional questions
about the scope of congressional power.
A. The Kansas Supreme Court’s decision
misreads IRCA and severely limits
traditional State authority.
1. The Kansas Supreme Court’s reading of
§ 1324a(b)(5) cannot be squared with the
statutory language, the section’s caption,
or the structure of IRCA.
The Kansas Supreme Court’s analysis does not
account for all the language of § 1324a(b)(5). That
provision refers to “[a] form designated or established
by the Attorney General under this subsection and any
information contained in or appended to . . . .” 8 U.S.C.
§ 1324a(b)(5). The Kansas Supreme Court read the
“and” between reference to the I-9 and “information
contained in or appended to” as expressly forbidding
the use of any information contained in or in any way
related or connected to a Form I-9 in any state
prosecution, even when the prosecution is based on use
of the information in documents other than the I-9. But
an equally, if not more, natural reading of that
language is that Congress was simply recognizing a
Form I-9 will contain information (and may have
documents appended to it). Congress was just making
clear that the Form I-9 itself, and documents appended

 26
to it (i.e., collectively, the “form”),6 could not be used in
a state prosecution, not that the same information
appearing in other, non-IRCA documents could not be
used.
In truth, the most natural reading of § 1324a(b)(5)
is that Congress intended to create an evidentiary bar
against the States (and federal agencies as well, except
for limited types of prosecutions) using the Form I-9
itself and the actual documents a job applicant
submitted in support of that form. The Kansas
Supreme Court’s interpretation of § 1324a(b)(5) is
deeply flawed as a matter of traditional statutory
interpretation principles.
Furthermore, the Kansas Supreme Court ignored
the caption for § 1342a(b)(5), which reads “Limitation
on use of attestation form.” (Emphasis added). The
caption indicates a congressional intent to limit use of

6

If § 1324a(b)(5) is to be read outside of any context, the Kansas
Supreme Court’s approach would lead to other, potentially absurd
questions. For example, could the States use documents submitted
with a Form I-9 but not actually “appended” to the I-9? Does
“appended” require the documents be stapled or paper-clipped to
the I-9? What if the documents are submitted to the employer at
a different time than the I-9 itself—would they be considered
“appended” documents? “Append” is commonly defined in
numerous dictionaries as “affix” or “attach.” Cf. Martinez, 896
N.W.2d at 768 n.7 (Mansfield, J., dissenting) (“Section 1324a(b)(5)
refers to ‘information . . . appended to such form.’ If the document
has been submitted to the employer but not attached to the I-9, it
has not been ‘appended to such form.’”). See also Yates v. United
States, 135 S. Ct. 1074 (2015) (rejecting a hyper-technical
interpretation of “tangible object” where it would expand statute
aimed at destruction of corporate document to a fisherman who
threw an undersized fish overboard).

 27
the to-be-created form (ultimately the Form I-9). This
supports reading § 1342a(b)(5) as referring to the Form
I-9 and information taken directly from the form, as
opposed to other documents (like a state tax form,
lease, or credit application) that may contain the same
information. Thus, the caption reinforces the natural
reading of the provision. United States v. Quality
Stores, 134 S. Ct. 1395, 1402 (2014) (“The plainness or
ambiguity of statutory language is determined [not
only] by reference to the language itself, [but as well
by] the specific context in which that language is used,
and the broader context of the statute as a whole.”). Cf.
Yates v. United States, 135 S. Ct. 1074, 1081-82 (2015)
(captions “can be ‘a useful aid in resolving’ a statutory
text’s ‘ambiguity’”).
Finally, the Kansas Supreme Court effectively
ignored the overall structure of IRCA because it
ignored the fact that § 1324a has an express
preemption provision, § 1324a(h)(2), which defines the
scope of Congress’s intent to preempt under IRCA.7 As
every other court to consider the question—as well as
the United States Department of Justice—has
recognized, IRCA’s express preemption provision does
not preempt the use of the information at issue here. At
a minimum, the presence and language of that
provision demonstrates that “express” preemption
cannot be a valid theory or rationale in the context of
§ 1324a(b)(5). Why would Congress label one
7

Preemption
The provisions of this section preempt any State or local law
imposing civil or criminal sanctions (other than through licensing
and similar laws) upon those who employ, or recruit or refer for a
fee for employment, unauthorized aliens. 8 U.S.C. § 1324a(h)(2).

 28
subsection “Preemption” but no other, and yet in fact
intend other subsections to serve as “express”
preemption provisions? Congress is entitled to more
credit than that.
2. The Kansas Supreme Court’s decision has
sweeping effects that Congress cannot
possibly have intended.
One result of the Kansas Supreme Court’s decision
is that the State may be precluded from prosecuting
even citizens and lawful aliens if such persons include
any information necessary to the state
prosecution—such as false name, false date of birth,
false telephone number, false social security
number—on a Form I-9 or in appended documents
when they apply for employment. The irony of such a
result is that the State would not even arguably be
interfering with federal immigration law prerogatives
when prosecuting citizens or authorized aliens. Such a
reading of IRCA does not pass the laugh test.
Nonetheless, the Kansas Supreme Court’s expansive
“express” preemption interpretation of § 1324a(b)(5)
would preclude use of the information in a state
prosecution in these situations.
The Iowa Supreme Court in State v. Martinez, 896
N.W.2d 737 (Iowa 2017), attempted to avoid this risible
result by creating an equally absurd outcome. The
Martinez majority limited its preemption ruling to
state prosecutions of unauthorized aliens. But that
artificial reading of IRCA means that a citizen who
uses a false name on a Form I-9 to avoid creditors can
be prosecuted under state law, while an unauthorized
alien who uses the exact same tactic cannot be
prosecuted. Id. at 761 (Mansfield, J., dissenting). In

 29
other words, the Martinez court’s unique and artificial
reading of IRCA permits imposition of state law
penalties on citizens while immunizing many noncitizens for the same misconduct. There is no indication
Congress intended that result under IRCA.
Instead, the way to ensure equal and consistent
treatment under state law is to reject the
interpretations of both the Kansas Supreme Court and
the Iowa Supreme Court. Section 1324a(b)(5) should be
read as simply preventing the States and federal
agencies (in general) from using the Form I-9 and
actual documents that accompany the submission of
that form as evidence in a prosecution. No more and no
less. Such a reading is most consistent with the
provision’s text, the section’s caption, the inclusion of
an entirely separate and explicitly labeled
“preemption” provision, and IRCA’s structure. Any
other conclusion leads to absurd results and sweeping
consequences.
B. Application of the constitutional doubt
and clear statement canons would
resolve the express preemption
argument in favor of Kansas, and avoid
constitutional issues.
This Court has not infrequently invoked the
“constitutional doubt” canon of statutory construction
to avoid potential constitutional issues Congress very
likely did not intend to create. In the context of federal
intrusions into traditional areas of state police power,
criminal law being a prime example, the Court also has
invoked a “clear statement” canon, requiring Congress
to use statutory language that clearly expresses
preemptive intent to override State police powers.

 30
An excellent and recent example of the Court
relying upon both canons is Bond v. United States, 134
S. Ct. 2077 (2014). There, Mrs. Bond was upset when
she discovered that her best friend was pregnant, and
that Mrs. Bond’s husband was the father. Mrs. Bond
then obtained two chemical substances (in powder
form) which she put on her former best friend’s car
door, front door knob, and mailbox, all to get revenge
by causing her former friend a rash from touching the
chemicals.
Federal prosecutors charged Mrs. Bond with
violating a federal statute—the Chemical Weapons
Convention Implementation Act of 1998—that
Congress enacted to implement an international treaty
to which the United States is a signatory. Mrs. Bond
argued the federal statute was unconstitutional
because it exceeded the scope of the Treaty Power. This
Court granted review but did not decide the
constitutional question. Instead, the Court construed
the statute to not apply to Mrs. Bond:
Because our constitutional structure leaves local
criminal activity primarily to the States, we
have generally declined to read federal law as
intruding on that responsibility, unless Congress
has clearly indicated that the law should have
such reach.
134 S. Ct. at 2083.
The Court began its analysis by observing that “the
National Government possesses only limited powers,”
in contrast to the States which “have broad authority
to enact legislation for the public good—what we have

 31
often called a ‘police power.’” 134 S. Ct. at 2086.8 Thus,
Pennsylvania indisputably had the authority to
prosecute Mrs. Bond for state law crimes, but it was far
from clear the federal government had authority to
prosecute. In such a situation, “‘normally the Court will
not decide a constitutional question if there is some
other ground upon which to dispose of the issue.’” Id. at
2087 (quoting Escambia County v. McMillan, 466 U.S.
48, 51 (1984) (per curiam)).
The Court proceeded to resolve Mrs. Bond’s case by
invoking the clear statement canon and reading the
statute more narrowly; the Court did not address the
Treaty Power question. The Court observed that “our
cases have recognized” several “background principles
of construction” that are “grounded in the relationship
between the Federal Government and the States under
our Constitution.” Id. at 2088. The Court emphasized
that it will not read a statute to override the “‘usual
constitutional balance of federal and state powers,’” id.
at 2089 (quoting Gregory v. Ashcroft, 501 U.S. 452, 460
(1991)), unless Congress is “reasonably explicit” or
makes a “clear statement” that it intended such a
result. Id. at 2089.
The Court continued: “We have applied this
background principle when construing federal statutes
that touched on several areas of traditional state
8

Cf. United States v. Lopez, 514 U.S. 549, 556 (1995) (“The
Constitution . . . withhold[s] from Congress a plenary police
power.”); Taylor v. United States, 136 S. Ct. 2074, 2083-84 (2016)
(Thomas, J., dissenting) (“The Constitution expressly delegates to
Congress authority over only four specific crimes” and Congress
thus has “no general right to punish the many crimes that fall
outside of Congress’ express grants of criminal authority.”).

 32
responsibility.” Id. The Court cautioned that it “will not
be quick” to conclude Congress intended to make a
“‘significant change in the sensitive relation between
federal and state criminal jurisdiction.’” Id. (quoting
United States v. Bass, 404 U.S. 336, 349 (1971)).
This case is, if anything, an even more compelling
situation in which to avoid reading IRCA broadly.
There is nothing in IRCA (and much to the contrary)
that is either “reasonably explicit” or a “clear
statement” indicating Congress intended to preempt a
vast area of traditional state police power. If the
Kansas Supreme Court correctly read IRCA, then
IRCA has a breathtaking impact on traditional state
prosecutions and would call into question the power of
Congress to enact such a provision. The Kansas
Supreme Court’s decision, at a minimum, raises
substantial questions about whether Congress has such
expansive power.
For example, under the Kansas Supreme Court’s
decisions, the State could not prosecute an individual
for identity theft or fraud for submitting a state tax
form with a false social security number or renting an
apartment with a stolen identity. But, just as the
“global need to prevent chemical warfare does not
require the Federal Government to reach into the
kitchen cupboard, or to treat a local assault with a
chemical irritant as the deployment of a chemical
weapon,” the need to control how a federal form is used
does not require the Federal Government to displace
States’ traditional authority to punish purely local
criminal activity. Id. at 2093; see also Taylor v. United
States, 136 S. Ct. 2074, 2084-85 (2016) (Thomas, J.,
dissenting) (allowing such reach by the Federal

 33
Government would “encroac[h] on States’ traditional
police powers to define the criminal law and to protect
. . . their citizens. . . . and would ‘subvert basic
principles of federalism and dual sovereignty.’”)
(quoting Gonzalez v. Raich, 545 U.S. 1, 66 (2005)
(Thomas, J., dissenting)).
Similarly, by employing principles of constitutional
avoidance in Jones v. United States, 529 U.S. 848
(2000), the Court declined to interpret a federal arson
statute as “mak[ing] virtually every arson in the
country a federal offense.” Id. at 859. The Kansas
Supreme Court, on the other hand, threw caution (and
any concern about bedrock federalism principles) to the
wind.
This Court can and should avoid the difficult
constitutional questions the Kansas Supreme Court’s
decisions raise by relying upon the constitutional
avoidance and clear statement canons. Only if the
Court were to agree with the Kansas Supreme Court’s
expansive reading of IRCA would it be necessary to
reach the second question presented.
III.

Identity Crime is a Problem that Far
Exceeds the Capacity of the United States
Alone to Prosecute.

In 2014, the United States Department of Justice
Bureau of Justice Statistics estimated that 17.6 million
people, or 7% of all U.S. residents age 16 or older, were
victims of identity theft. U.S. DEPT. OF JUSTICE,
BUREAU OF STATISTICS, Victims of Identity Theft (2014),
https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5408.
In 2017, Javelin Strategy & Research conducted a
study finding that identity crimes stole $16 billion from

 34
15.4 million American consumers in 2016. INSURANCE
INFORMATION INSTITUTE, Facts + Statistics: Identity
theft and cybercrime, https://www.iii.org/factstatistic/facts-statistics-identity-theft-and-cybercrime
(last visited Nov. 1, 2017). Thirty-four percent of those
victimized in 2016 had their information used for
employment or tax-related fraud. Id.
The Privacy Rights Clearinghouse recorded 1,228
breaches of data made public in 2016 and through the
end of October of 2017. P RIVACY R IGHTS
CLEARINGHOUSE, https://www.privacyrights.org/databreaches (last visited October 31, 2017). Their data,
however, does not begin to account for the total number
of potential identity theft victims, such as the 143
million American consumers estimated to be affected
by the Equifax breach. Seena Gressin, The Equifax
Data Breach: What to do, https://www.consumer.
ftc.gov/blog/2017/09/equifax-data-breach-what-do (last
visited Nov. 1, 2017).
The victims of identity theft can face devastating
consequences. Those in dire need of government
benefits may be denied them because income they
never earned is attributed to them. Medical identity
theft is on the rise, with the real potential for deadly
consequences once the thief’s medical history becomes
melded with the victim’s. Patricia Oliver, What’s [the]
most dangerous kind of identity theft?, USA TODAY,
https://www.usatoday.com/story/money/personalfinan
ce/2015/03/15/credit-dotcom-dangerous-identitytheft/70136996/ (last visited Nov. 1, 2017.)
Victims can be wrongfully arrested for crimes the
thief committed while using the victims’ identifying
information. Some victims are burdened with an

 35
ostensible criminal history for crimes they never
committed. Low income victims have reported
significant financial woes such as losing their
residences or homes, or having to seek government
assistance such as welfare, because of identity theft.
Some victims lose employment opportunities when
background checks reveal ostensible problems that are
not in fact accurate. IDENTITY THEFT RESOURCE
CENTER, Identity Theft: The Aftermath 2016,
https://www.idtheftcenter.org/images/page-docs/
AftermathFinal_2016.pdf. And the victims’ ability to
obtain credit may be severely impaired by identity
theft.
This nationwide, indeed worldwide, problem and its
consequences are more than the federal government
alone can address. Thus, the States play a substantial
and integral role in combatting identity crimes and
their pernicious consequences. Appropriately, every
single state has criminalized identity theft. NAT’L
CONFERENCE OF STATE LEGISLATURES, Identity Theft
http://www.ncsl.org/research/financial-services-andcommerce/identity-theft-state-statutes.aspx (last
visited Nov. 1, 2017) (listing state identity theft laws).
The States protect the public and seek to achieve
numerous goals through the adoption and enforcement
of these laws. The States unquestionably have a
significant interest in protecting their own citizens
from the widespread problem of identity theft, and the
States have taken concrete actions to further the
prosecution of such crimes. For example, many states
have enacted special venue laws to permit prosecutions
in the jurisdiction where the victim resides, rather
than limiting venue to the jurisdiction where the

 36
defendant accessed and stole the victim’s personal
information. E.g., State v. Mayze, 622 S.E.2d 836, 838
(Ga. 2005) (identifying 20 such states).
In fact, the States regularly charge and prosecute
identity thieves in a wide variety of situations. The
States’ combined efforts contribute significantly to the
nationwide fight against identity crimes. Federal laws,
such as IRCA, should not be unnecessarily and
incorrectly interpreted to bar or limit the massive and
important efforts the States are making to protect
Americans from the evil and tragic consequences of
identity crimes.
The questions presented in this petition have farreaching implications for the States and the Nation.
CONCLUSION
The petition for writ of certiorari should be granted.

 37
Respectfully submitted,
DEREK SCHMIDT
Attorney General of Kansas
JEFFREY A. CHANAY
Chief Deputy Attorney General
STEPHEN R. MCALLISTER
Solicitor General of Kansas
(Counsel of Record)
KRISTAFER AILSLIEGER
Deputy Solicitor General
NATALIE CHALMERS
Assistant Solicitor General
BRYAN C. CLARK
Assistant Solicitor General
DWIGHT R. CARSWELL
Assistant Solicitor General
STEVE HOWE
District Attorney,
Johnson County, Kansas
JACOB M. GONTESKY
Assistant District Attorney
120 S.W. 10th Ave., 2nd Floor
Topeka, KS 66612
(785) 296-2215
steve.mcallister@333law.com
Counsel for Petitioner
State of Kansas