Supreme Court Re-Opens Door to States’ Role in Immigration Enforcement. They Should Run, Not Walk, Through It

In March, the U.S. Supreme Court issued its decision in Kansas v. Garcia. This ruling may be one of most significant on the states’ role in enforcing America’s immigration laws in nearly a decade.  Instead of tying the states’ hands like previous rulings, the Court held they are free to dramatically back up federal immigration officials.

In Arizona v. United States in 2012, the Supreme Court struck down a portion of Arizona’s immigration enforcement law, Senate Bill (SB) 1070.  In the opinion authored by Justice Anthony Kennedy, the Court’s majority used the doctrines of federal supremacy over immigration and federal preemption of state law to hold that states are helpless and powerless to supplement federal law or action with their own.  It determined that state involvement in helping to support the very immigration laws Congress had themselves enacted could somehow be an “obstacle to the full purposes and objectives of Congress.”

In practice, this judicial hair-splitting in the Arizona case over what is preempted and therefore forbidden versus what is not preempted and therefore allowed was incoherent and resulted in law enforcement cautiously stepping back from immigration enforcement and not even doing what the Court permitted.  Since the Supreme Court’s ruling in Arizona v the U.S., litigation filed by the open-borders crowd has claimed any state or local immigration enforcement activity is federally preempted.

This was exactly the kind of bewildering argument that ultimately brought Kansas v. Garcia before the Supreme Court.  In this case, the State of Kansas charged and convicted three illegal aliens under the state’s identity theft statutes for using stolen or false Social Security numbers on state and federal tax forms to fraudulently obtain employment. 

Both the trial court and the Kansas Court of Appeals upheld their convictions, but the Kansas Supreme Court threw them out, relying on the Arizona v. U.S. to find state law was federally preempted. According to the Kansas Supreme Court, the State was preempted by the provision of federal law which states information on a federal I-9 employment form cannot be used for other purposes.

In the 5-4 opinion, with Justice Samuel Alito writing for the majority, the U.S. Supreme Court reversed the Kansas Supreme Court holding the convictions should stand.  The court further noted that the alternative would have been to make I-9’s effectively into get-out-of-jail-free cards, enabling illegal aliens to immunize themselves against state prosecution even for crimes having nothing specifically to do with immigration.

Unsurprisingly, open-borders advocates were dismayed that the Court  gave states greater rights to prosecute.

Former Kansas Secretary of State Kris Kobach rightly praised the ruling as a victory for both states’ rights and immigration enforcement that “will be quoted many times in the future.”

The idea that sanctuary policies which impede federal law are constitutional while policies that enforce federal law are not has been absurdly contradictory. With the ruling in Kansas v. Garcia, the Supreme Court has steered things in a more logical and coherent direction.  As Dale Wilcox of the Immigration Reform Law Institute says, “[t]he Court was correct to recognize that though states may not hinder, they are free to help.”

The Court’s ruling doesn’t require states to enact any new law.  Like Kansas’s ID theft statute, states have plenty of their own laws of general application on the books already.  The Court ruling held they can use them, regardless of whether they have impact immigration.

Read the Supreme Court’s opinion in Kansas v. Garcia by clicking HERE

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