Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes at the Bloomberg Law Podcast, on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. The Supreme Court
Speaker 1: heard oral arguments today in a case that could dramatically
Speaker 1: change the landscape of immigration enforcement in this country by
Speaker 1: bolstering the power of states to prosecute undocumented immigrants for
Speaker 1: identity theft if they use someone else's social Security number
Speaker 1: to apply for a job. Joining me is Leon Fresco,
Speaker 1: an immigration law expert at Hollandon Night. This is about
Speaker 1: three illegal immigrants who got restaurant jobs using other people's
Speaker 1: social Security numbers. Why is this at the Supreme Court? Well,
Speaker 1: it's at the Supreme Court because it is a more
Speaker 1: important principle with regard to whether state can take it
Speaker 1: upon themselves to enforce the immigration and law. And what
Speaker 1: the complication of this case is is that the states
Speaker 1: are saying that they're not enforcing the immigration law, that
Speaker 1: what they're doing is they're enforcing identity theft provisions that
Speaker 1: prevent undocumented workers from using the identities of other people
Speaker 1: in order to get the jobs. And what the people
Speaker 1: challenging these convictions are saying is that, no, if the
Speaker 1: information is coming from the very process that an employee
Speaker 1: uses to obtain a job and obtain immigration authorization to
Speaker 1: have that job, then it's something that a state cannot
Speaker 1: take upon themselves to prosecute. It must be prosecuted by
Speaker 1: the federal government. Didn't the Supreme Court deal with this
Speaker 1: in a case involving Arizona trying to use identity theft
Speaker 1: laws to prosecute non citizens for working illegally in sure,
Speaker 1: So this is where it's complicated is Arizona passed a
Speaker 1: broad range of laws that allowed the states to take
Speaker 1: over the same immigration enforcement functions that the federal government,
Speaker 1: and one of them was prosecuting people who worked without
Speaker 1: authorization in the United States. And so that was stricken down.
Speaker 1: And the question is because that broad provision that was
Speaker 1: prosecuting anyone who worked illegally in the United States was
Speaker 1: stricken down, The question is what is to happen about
Speaker 1: this narrow identity theft part of it? Is this to
Speaker 1: be something that is permitted because any identity theft could
Speaker 1: be prosecuted regardless of whether you were undocumented or not.
Speaker 1: Or is it subsumed by the larger holding of Arizona,
Speaker 1: which is, look, the role of prosecutions in the employment
Speaker 1: process that have to do with people lying for immigration
Speaker 1: related reasons has to be taken up by the federal
Speaker 1: government and the states simply are preempted from taking this role.
Speaker 1: So leon is this about statutory interpretation then, or is
Speaker 1: it about statutory interpretation in light of past rulings of
Speaker 1: the court. Well, it is definitely about statutory interpretation and
Speaker 1: what Congress meant to do in what's called thirty four
Speaker 1: B five when it's preempting the states from engaging in
Speaker 1: immigration enforcement. But the Court is very concerned about, well,
Speaker 1: what is left of the Arizona ruling If a state
Speaker 1: can basically harvest the information from immigration documents and charge
Speaker 1: people for other reasons that aren't immigration reasons. Everybody understands
Speaker 1: that what will be left is, for sure, a state
Speaker 1: cannot charge for immigration reasons explicitly, but if they're doing
Speaker 1: the exact same thing but calling it a different charge,
Speaker 1: is a state permitted to do that? And so that's
Speaker 1: where the battle lines are now. Explain how Kansas is
Speaker 1: using this, how they're prosecuting them for identity theft, and
Speaker 1: then what happens as far as deportation. Sure, well, the
Speaker 1: way that happened in these particular three cases was a
Speaker 1: package of information was provided to the employer or by
Speaker 1: the worker, and that package included the anine form where
Speaker 1: the person gives their name, their Social Security number, their address,
Speaker 1: and their identifying documentation and also tax withholding forms were
Speaker 1: given as well for both state and federal taxes. And
Speaker 1: so that packet of information was given. And what Kansas
Speaker 1: is trying to say is even though that was all
Speaker 1: given as a packet, the fraud that's being prosecuted is
Speaker 1: on the non ininine form. It's on the tax part
Speaker 1: of it that they're prosecuting the fraud. And what the
Speaker 1: people challenging these prosecutions are saying is, yeah, but that
Speaker 1: whole package was given to the employer because of the
Speaker 1: fact that the I nine was in it, and the
Speaker 1: employee was trying to show that they had documented status
Speaker 1: that permitted them to work, and the way they were
Speaker 1: trying to show that was by using fake identity. And
Speaker 1: so that's the battle is if you have this package
Speaker 1: of information that is dependent upon the anine form. Is
Speaker 1: it permissible then for states to prosecute something that would
Speaker 1: normally be prosecuted by the federal government. Is this reminiscent
Speaker 1: of former Maricopa County Arizona Sheriff Joe R. Pio, who
Speaker 1: used state identity theft laws to raid businesses and round
Speaker 1: up illegal immigrants. Absolutely, And that's what the concern is
Speaker 1: of the courts is that this could end up being
Speaker 1: that which is, at the end of the day, if
Speaker 1: the court sets no limiting principle here other than you
Speaker 1: can't prosecute someone for a false statement on the NY nine,
Speaker 1: but you could prosecute them for anything else, then at
Speaker 1: what point is this the fact that at the end
Speaker 1: every state will have it in their own hands to
Speaker 1: prosecute people who are undocumented for working illegally, which is
Speaker 1: what you know the Arizona case that states couldn't do that.
Speaker 1: And so how would this effectively, not legally, but effectively
Speaker 1: not be a reversal if states could just figure out
Speaker 1: this loophole to say, look, it isn't just the immigration
Speaker 1: document that immigrants give. They also have to give a
Speaker 1: corresponding tax document. So when they do this together. Let's
Speaker 1: just charge them for fraud on the tax document. Did
Speaker 1: the Supreme Court justices give any hints as to how
Speaker 1: they felt about this? Sure, so I think it's pretty
Speaker 1: clear that the four justices who are appointed by Democratic
Speaker 1: presidents think that this was pre ended, and they said
Speaker 1: it as much in the oral argument. I think Justice
Speaker 1: Kavana is the potentially swing vote here because he's the
Speaker 1: one who was having trouble and asked repeatedly how the
Speaker 1: Kansas Solicitor General could rectify the fact that this prosecution
Speaker 1: was happening with the Arizona decision and where the limiting
Speaker 1: principles are, and he certainly didn't feel like at least
Speaker 1: the Kansas Solicitor General gave him an acceptable answer. So
Speaker 1: what will be the question here is whether Justice Kavana
Speaker 1: comes up with his own limiting principle or whether he
Speaker 1: thinks these prosecutions should just be done by the federal government.
Speaker 1: Integration attorneys say they're concerned about the potential for a
Speaker 1: patchwork of different immigration related laws across the country. Do
Speaker 1: you see that as a problem. That's always a possibility
Speaker 1: here when you start allowing states to delve into these
Speaker 1: employment realms is once you start saying okay, a state
Speaker 1: can now prosecute what is, in essence, the act of
Speaker 1: trying to work as an undocumented person. All it will
Speaker 1: take then is for states to require the use of
Speaker 1: e verify, which is permitted by a different case called
Speaker 1: Chamber of Commerce versus Whiting. And then when you require
Speaker 1: the use of e verify, anybody who uses e verify
Speaker 1: who's trying to get a job in such an environment
Speaker 1: will inevitably have to create an identity theft in order
Speaker 1: to fool the system. And so whenever anybody does that,
Speaker 1: the states will be able to come in and check
Speaker 1: for that and prosecute without the federal government having done
Speaker 1: anything anywhere in that process. And so I think that's
Speaker 1: what the concern is amongst immigration lawyers is that should
Speaker 1: be a federal answer here, and you know, if it
Speaker 1: starts being much more difficult in terms of enforcement in
Speaker 1: one state than another, than there isn't this national way
Speaker 1: of approaching the immigration problem. Thanks Leon, that's Leon Fresco
Speaker 1: of Holland and Knight. Thanks for listening to the Bloomberg
Speaker 1: Law podcast. You can subscribe and listen to the show
Speaker 1: on Apple Podcasts. SoundCloud and on bloomberg dot com slash Podcast.
Speaker 1: I'm June Brosso. This is Bloomberg