WEBVTT - High Court Considers Immigration Enforcement by States

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes at the Bloomberg Law Podcast, on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The Supreme Court

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<v Speaker 1>heard oral arguments today in a case that could dramatically

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<v Speaker 1>change the landscape of immigration enforcement in this country by

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<v Speaker 1>bolstering the power of states to prosecute undocumented immigrants for

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<v Speaker 1>identity theft if they use someone else's social Security number

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<v Speaker 1>to apply for a job. Joining me is Leon Fresco,

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<v Speaker 1>an immigration law expert at Hollandon Night. This is about

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<v Speaker 1>three illegal immigrants who got restaurant jobs using other people's

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<v Speaker 1>social Security numbers. Why is this at the Supreme Court? Well,

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<v Speaker 1>it's at the Supreme Court because it is a more

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<v Speaker 1>important principle with regard to whether state can take it

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<v Speaker 1>upon themselves to enforce the immigration and law. And what

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<v Speaker 1>the complication of this case is is that the states

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<v Speaker 1>are saying that they're not enforcing the immigration law, that

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<v Speaker 1>what they're doing is they're enforcing identity theft provisions that

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<v Speaker 1>prevent undocumented workers from using the identities of other people

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<v Speaker 1>in order to get the jobs. And what the people

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<v Speaker 1>challenging these convictions are saying is that, no, if the

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<v Speaker 1>information is coming from the very process that an employee

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<v Speaker 1>uses to obtain a job and obtain immigration authorization to

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<v Speaker 1>have that job, then it's something that a state cannot

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<v Speaker 1>take upon themselves to prosecute. It must be prosecuted by

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<v Speaker 1>the federal government. Didn't the Supreme Court deal with this

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<v Speaker 1>in a case involving Arizona trying to use identity theft

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<v Speaker 1>laws to prosecute non citizens for working illegally in sure,

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<v Speaker 1>So this is where it's complicated is Arizona passed a

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<v Speaker 1>broad range of laws that allowed the states to take

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<v Speaker 1>over the same immigration enforcement functions that the federal government,

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<v Speaker 1>and one of them was prosecuting people who worked without

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<v Speaker 1>authorization in the United States. And so that was stricken down.

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<v Speaker 1>And the question is because that broad provision that was

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<v Speaker 1>prosecuting anyone who worked illegally in the United States was

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<v Speaker 1>stricken down, The question is what is to happen about

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<v Speaker 1>this narrow identity theft part of it? Is this to

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<v Speaker 1>be something that is permitted because any identity theft could

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<v Speaker 1>be prosecuted regardless of whether you were undocumented or not.

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<v Speaker 1>Or is it subsumed by the larger holding of Arizona,

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<v Speaker 1>which is, look, the role of prosecutions in the employment

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<v Speaker 1>process that have to do with people lying for immigration

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<v Speaker 1>related reasons has to be taken up by the federal

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<v Speaker 1>government and the states simply are preempted from taking this role.

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<v Speaker 1>So leon is this about statutory interpretation then, or is

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<v Speaker 1>it about statutory interpretation in light of past rulings of

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<v Speaker 1>the court. Well, it is definitely about statutory interpretation and

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<v Speaker 1>what Congress meant to do in what's called thirty four

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<v Speaker 1>B five when it's preempting the states from engaging in

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<v Speaker 1>immigration enforcement. But the Court is very concerned about, well,

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<v Speaker 1>what is left of the Arizona ruling If a state

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<v Speaker 1>can basically harvest the information from immigration documents and charge

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<v Speaker 1>people for other reasons that aren't immigration reasons. Everybody understands

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<v Speaker 1>that what will be left is, for sure, a state

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<v Speaker 1>cannot charge for immigration reasons explicitly, but if they're doing

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<v Speaker 1>the exact same thing but calling it a different charge,

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<v Speaker 1>is a state permitted to do that? And so that's

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<v Speaker 1>where the battle lines are now. Explain how Kansas is

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<v Speaker 1>using this, how they're prosecuting them for identity theft, and

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<v Speaker 1>then what happens as far as deportation. Sure, well, the

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<v Speaker 1>way that happened in these particular three cases was a

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<v Speaker 1>package of information was provided to the employer or by

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<v Speaker 1>the worker, and that package included the anine form where

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<v Speaker 1>the person gives their name, their Social Security number, their address,

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<v Speaker 1>and their identifying documentation and also tax withholding forms were

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<v Speaker 1>given as well for both state and federal taxes. And

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<v Speaker 1>so that packet of information was given. And what Kansas

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<v Speaker 1>is trying to say is even though that was all

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<v Speaker 1>given as a packet, the fraud that's being prosecuted is

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<v Speaker 1>on the non ininine form. It's on the tax part

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<v Speaker 1>of it that they're prosecuting the fraud. And what the

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<v Speaker 1>people challenging these prosecutions are saying is, yeah, but that

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<v Speaker 1>whole package was given to the employer because of the

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<v Speaker 1>fact that the I nine was in it, and the

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<v Speaker 1>employee was trying to show that they had documented status

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<v Speaker 1>that permitted them to work, and the way they were

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<v Speaker 1>trying to show that was by using fake identity. And

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<v Speaker 1>so that's the battle is if you have this package

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<v Speaker 1>of information that is dependent upon the anine form. Is

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<v Speaker 1>it permissible then for states to prosecute something that would

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<v Speaker 1>normally be prosecuted by the federal government. Is this reminiscent

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<v Speaker 1>of former Maricopa County Arizona Sheriff Joe R. Pio, who

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<v Speaker 1>used state identity theft laws to raid businesses and round

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<v Speaker 1>up illegal immigrants. Absolutely, And that's what the concern is

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<v Speaker 1>of the courts is that this could end up being

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<v Speaker 1>that which is, at the end of the day, if

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<v Speaker 1>the court sets no limiting principle here other than you

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<v Speaker 1>can't prosecute someone for a false statement on the NY nine,

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<v Speaker 1>but you could prosecute them for anything else, then at

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<v Speaker 1>what point is this the fact that at the end

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<v Speaker 1>every state will have it in their own hands to

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<v Speaker 1>prosecute people who are undocumented for working illegally, which is

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<v Speaker 1>what you know the Arizona case that states couldn't do that.

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<v Speaker 1>And so how would this effectively, not legally, but effectively

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<v Speaker 1>not be a reversal if states could just figure out

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<v Speaker 1>this loophole to say, look, it isn't just the immigration

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<v Speaker 1>document that immigrants give. They also have to give a

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<v Speaker 1>corresponding tax document. So when they do this together. Let's

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<v Speaker 1>just charge them for fraud on the tax document. Did

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<v Speaker 1>the Supreme Court justices give any hints as to how

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<v Speaker 1>they felt about this? Sure, so I think it's pretty

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<v Speaker 1>clear that the four justices who are appointed by Democratic

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<v Speaker 1>presidents think that this was pre ended, and they said

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<v Speaker 1>it as much in the oral argument. I think Justice

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<v Speaker 1>Kavana is the potentially swing vote here because he's the

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<v Speaker 1>one who was having trouble and asked repeatedly how the

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<v Speaker 1>Kansas Solicitor General could rectify the fact that this prosecution

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<v Speaker 1>was happening with the Arizona decision and where the limiting

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<v Speaker 1>principles are, and he certainly didn't feel like at least

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<v Speaker 1>the Kansas Solicitor General gave him an acceptable answer. So

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<v Speaker 1>what will be the question here is whether Justice Kavana

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<v Speaker 1>comes up with his own limiting principle or whether he

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<v Speaker 1>thinks these prosecutions should just be done by the federal government.

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<v Speaker 1>Integration attorneys say they're concerned about the potential for a

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<v Speaker 1>patchwork of different immigration related laws across the country. Do

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<v Speaker 1>you see that as a problem. That's always a possibility

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<v Speaker 1>here when you start allowing states to delve into these

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<v Speaker 1>employment realms is once you start saying okay, a state

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<v Speaker 1>can now prosecute what is, in essence, the act of

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<v Speaker 1>trying to work as an undocumented person. All it will

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<v Speaker 1>take then is for states to require the use of

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<v Speaker 1>e verify, which is permitted by a different case called

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<v Speaker 1>Chamber of Commerce versus Whiting. And then when you require

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<v Speaker 1>the use of e verify, anybody who uses e verify

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<v Speaker 1>who's trying to get a job in such an environment

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<v Speaker 1>will inevitably have to create an identity theft in order

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<v Speaker 1>to fool the system. And so whenever anybody does that,

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<v Speaker 1>the states will be able to come in and check

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<v Speaker 1>for that and prosecute without the federal government having done

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<v Speaker 1>anything anywhere in that process. And so I think that's

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<v Speaker 1>what the concern is amongst immigration lawyers is that should

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<v Speaker 1>be a federal answer here, and you know, if it

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<v Speaker 1>starts being much more difficult in terms of enforcement in

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<v Speaker 1>one state than another, than there isn't this national way

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<v Speaker 1>of approaching the immigration problem. Thanks Leon, that's Leon Fresco

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<v Speaker 1>of Holland and Knight. Thanks for listening to the Bloomberg

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<v Speaker 1>Law podcast. You can subscribe and listen to the show

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<v Speaker 1>on Apple Podcasts. SoundCloud and on bloomberg dot com slash Podcast.

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<v Speaker 1>I'm June Brosso. This is Bloomberg