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U.S. Supreme Court sides with Kansas in identity theft case

Release Date: Mar 03, 2020

TOPEKA – (March 3, 2020) – The U.S. Supreme Court today sided with Kansas and ruled that federal immigration law does not preempt state identity theft prosecutions, Attorney General Derek Schmidt said.

Deciding a case Schmidt argued October 16, the high court unanimously rejected the Kansas Supreme Court’s conclusion that federal law expressly preempts state identity theft prosecutions. In addition, a majority of the Court also rejected an alternative theory of implied preemption.

“Taken at face value, [the Kansas Supreme Court’s] theory would mean that no information placed on an I-9 — including an employee’s name, residence address, date of birth, telephone number, and e-mail address — could ever be used by any entity or person for any reason,” Justice Samuel Alito wrote in the majority opinion. “This interpretation is flatly contrary to standard English usage.”

Schmidt said today's decision makes clear Kansas may continue to enforce its identity theft laws without regard to the offender's employment status or immigration status.

“Congress never intended to block Kansas from prosecuting people who falsify tax forms or private legal documents merely because the defendant also falsified federal employment verification forms,” Schmidt said. “Today’s ruling makes clear that state identity theft laws apply to everybody, including offenders who are in the country unlawfully and apply for a job.” 

In 2017, the Kansas Supreme Court overturned the convictions of three individuals for crimes including identity theft and making false information on state tax forms or private legal documents. In a 5-2 ruling, the Kansas Supreme Court’s majority concluded that federal immigration law preempts Kansas from enforcing state criminal law in these cases because the false Social Security numbers and other information the defendants used had also been submitted on a federal I-9 Form used for employment verification. All three prosecutions arose in Johnson County.

Today’s ruling settles the federal statutory and constitutional issues that were incorrectly decided by the Kansas Supreme Court. The cases now return to the Kansas Supreme Court, which will determine whether additional proceedings are necessary.

This was the third U.S. Supreme Court case Schmidt has personally argued as Kansas attorney general. Kansas previously prevailed in Kansas v. Cheever and Kansas v. Carr, both capital murder cases.

A copy of today’s U.S. Supreme Court decision in Kansas v. Garcia is available at  

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