Justice Sonia Sotomayor was so eager to jump into a case Wednesday concerning the tension between the federal government and states when it comes to immigration enforcement that she broke the Supreme Court’s new rule that allows a lawyer to begin arguments for two minutes without interruption.
Chief Justice John Roberts stepped in and said the lawyer could address Sotomayor’s question later on.
Wednesday’s case concerns whether immigrants who stole Social Security numbers in an attempt to gain employment could be prosecuted under state identity theft law.
In general, when it comes to immigration, federal law regulating a certain area preempts or supersedes state law in order to avoid a patchwork of different regulations across the country. Wednesday’s arguments raised the question of how far a state can go when applying its law without interfering with federal law.
At oral arguments, some of the justices questioned whether Kansas, in prosecuting immigrants under state fraud law, encroached on an area reserved for the federal government.
In the challenge at hand, Ramos Garcia used the Social Security number of someone else in order to get a job in a restaurant. After it was discovered, Garcia was convicted under state identity theft law.
But lawyers for Garcia told the justices that he could not be convicted under state law because it is preempted by the Immigration Reform and Control Act of 1986 that establishes a framework for the regulation of unauthorized employment. Under the law, an employee must submit documents establishing work authorization and an employer must attest to their employee’s status.
The Kansas Supreme Court ruled in Garcia’s favor, holding that the state prosecution, relying in part on information culled from federal forms was invalid. The court held the regulation of unauthorized employment is governed by the federal law.
Kansas argues it was not trying to act as an immigration enforcer, but was simply trying to enforce its own identity theft law that applies to everyone in the state.
Lawyers for the state argued that the lower court opinion swept too broadly, infringing upon states’ right to enforce its laws and that the opinion could lead to “serious constitutional questions about the scope of congressional power to override the States’ traditionally broad police power to enact criminal laws” including, in this instance, those to punish identity theft.
Significantly, the Trump administration sides with Kansas in the case arguing that the federal and state law at issue are not in conflict and that the lower court ignored the fact that the state prosecution could have gone forward without ever relying upon information culled from federal forms. In briefs, Solicitor General Noel Francisco said that the lower court opinion “produces untenable results” by blocking a state from enforcing identity threat prosecutions.
“Kansas’ prosecutions,” Francisco argued, “neither invade a federally occupied field not conflict with Congress’ purposes” in passing the federal law.
But Wednesday, some of the more liberal justices suggested otherwise – expressing concern that the Kansas prosecutions amounted to a veiled attempt at immigration enforcement.
Although the court is likely to issue a narrow ruling focused on the issue of employment authorization, some experts say that a win for Kansas could open the doors for other states’ efforts to regulate immigration.
“What’s sauce for the goose is sauce for the gander,” said Stephen Yale-Loehr, an immigration professor at Cornell Law School. “If the Supreme Court rules that federal government no longer as sole responsibility for regulating immigration, lower courts may uphold pro-immigrant or sanctuary or non cooperation polices enacted by states and localities,” he said.
Two minute rule
The two minute rule was installed for the new term which began last week. Supreme Court arguments tend to be free-for-alls, and the rule allows lawyers to make a case or set the tone for arguments before being interrupted by the justices.
Sotomayor has always been one of the more active judges in oral arguments.