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Full Opinion
(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KANSAS v. GARCIA
CERTIORARI TO THE SUPREME COURT OF KANSAS
No. 17ā834. Argued October 16, 2019āDecided March 3, 2020*
The Immigration Reform and Control Act of 1986 (IRCA) makes it un-
lawful to hire an alien knowing that he or she is unauthorized to work
in the United States. 8 U. S. C. Ā§Ā§1324a(a)(1), (h)(3). IRCA requires
employers to comply with a federal employment verification system.
Ā§1324a(b). Using a federal work-authorization form (Iā9), they āmust
attestā that they have āverifiedā that any new employee, regardless of
citizenship or nationality, āis not an unauthorized alienā by examining
approved documents, e.g., a United States passport or an alien regis-
tration card, Ā§1324a(b)(1)(A). IRCA concomitantly requires all em-
ployees to complete an Iā9 by their first day of employment and to at-
test that they are authorized to work. Ā§1324a(b)(2). Every employee
must also provide certain personal information, including name, ad-
dress, birth date, Social Security number, e-mail address, and tele-
phone number. It is a federal crime for an employee to provide false
information on an Iā9 or to use fraudulent documents to show work
authorization. See 18 U. S. C. Ā§Ā§1028, 1546. But it is not a federal
crime for an alien to work without authorization, and state laws crim-
inalizing such conduct are preempted. Arizona v. United States, 567
U. S. 387, 403ā407. The Iā9 forms and appended documentation, as
well as the employment verification system, may only be used for en-
forcement of the Immigration and Nationality Act or other specified
federal prohibitions. See Ā§Ā§1324a(b)(5), (d)(2)(F). IRCA does not di-
rectly address the use of an employeeās federal and state tax-withhold-
ing forms, the Wā4 and Kā4 respectively. Finally, IRCA expressly
āpreempt[s] any State or local law imposing civil or criminal sanctions
āāāāāā
* Together with Kansas v. Morales (see this Courtās Rule 12.4) and
Kansas v. Ochoa-Lara (see this Courtās Rule 12.4), also on certiorari to
the same court.
2 KANSAS v. GARCIA
Syllabus
. . . upon those who employ, or recruit or refer for a fee for employment,
unauthorized aliens.ā Ā§1324a(h)(2).
Kansas makes it a crime to commit āidentity theftā or engage in
fraud to obtain a benefit. Respondents, three unauthorized aliens,
were tried for fraudulently using another personās Social Security
number on the Wā4ās and Kā4ās that they submitted upon obtaining
employment. They had used the same Social Security numbers on
their Iā9 forms. Respondents were convicted, and the Kansas Court of
Appeals affirmed. A divided Kansas Supreme Court reversed, conclud-
ing that Ā§1324a(b)(5) expressly prohibits a State from using any infor-
mation contained within an Iā9 as the basis for a state law identity
theft prosecution of an alien who uses anotherās Social Security infor-
mation in an Iā9. The court deemed irrelevant the fact that this infor-
mation was also included in the Wā4 and Kā4. One justice concurred
based on implied preemption.
Held:
1. The Kansas statutes under which respondents were convicted are
not expressly preempted. IRCAās express preemption provision ap-
plies only to employers and those who recruit or refer prospective em-
ployees and is thus plainly inapplicable. The Kansas Supreme Court
instead relied on Ā§1324a(b)(5), which broadly restricts any use of an Iā
9, information ācontained inā an Iā9, and any documents appended to
an Iā9, reasoning that respondentsā Wā4ās and Kā4ās used the same
false Social Security numbers contained in their Iā9ās. The theory that
no information placed on an Iā9 could ever be used by any entity or
person for any reasonāother than the handful of federal statutes men-
tioned in Ā§1324a(b)(5)āis contrary to standard English usage. A tan-
gible object can be ācontained inā only one place at any point in time,
but information may be ācontained inā many different places. The
mere fact that an Iā9 contains an item of information, such as a name
or address, does not mean that information ācontained inā the Iā9 is
used whenever that name or address is used elsewhere. Nothing in
Ā§1324a(b)(5)ās text supports the Kansas Supreme Courtās limiting in-
terpretation to prosecuting aliens for using a false identity to establish
āemployment eligibility.ā And respondentsā express preemption argu-
ment cannot be saved by Ā§1324a(d)(2)(F), which prohibits use of the
federal employment verification system āfor law enforcement purposes
other thanā enforcement of IRCA and the same handful of federal stat-
utes mentioned in Ā§1324a(b)(5). This argument fails because it rests
on a misunderstanding of the meaning of the federal āemployment ver-
ification system.ā The sole function of that system is to establish that
an employee is not barred from working in this country. The comple-
tion of tax-withholding documents plays no part in the process of de-
termining whether a person is authorized to work. Pp. 10ā14.
Cite as: 589 U. S. ____ (2020) 3
Syllabus
2. Respondentsā argument that Kansasās laws are preempted by im-
plication is also rejected. Pp. 15ā20.
(a) The laws do not fall into a field that is implicitly reserved ex-
clusively for federal regulation, including respondentsā claimed field of
āfraud on the federal verification system.ā The submission of tax-
withholding forms is neither part of, nor ārelatedā to, the verification sys-
tem. Employees may complete their Wā4ās, Kā4ās, and Iā9ās at roughly
the same time, but IRCA plainly does not foreclose all state regulation
of information required as a precondition of employment. In arguing
that the Stateās statutes require proof that the accused engaged in the
prohibited conduct for the purpose of getting a ābenefit,ā respondents
conflate the benefit that results from complying with the federal em-
ployment verification system with the benefit of actually getting a job.
Submitting Wā4ās and Kā4ās helped respondents get jobs, but it did not
assist them in showing that they were authorized to work in this coun-
try. Federal law does not create a comprehensive and unified system
regarding the information that a State may require employees to pro-
vide. Pp. 15ā17.
(b) There is likewise no ground for holding that the Kansas stat-
utes at issue conflict with federal law. It is certainly possible to comply
with both IRCA and the Kansas statutes, and respondents do not sug-
gest otherwise. They instead maintain that the Kansas statutes, as
applied in their prosecutions, stand as āan obstacle to the accomplish-
ment and execution of the full purposesā of IRCAāone of which is pur-
portedly that the initiation of any legal action against an unauthorized
alien for using a false identity in applying for employment should rest
exclusively within the prosecutorial discretion of federal authorities.
Respondents analogize their case to Arizona v. United States, 567
U. S., at 404ā407, where the Court concluded that a state law making
it a crime for an unauthorized alien to obtain employment conflicted
with IRCA, which does not criminalize that conduct. But here, Con-
gress made no decision that an unauthorized alien who uses a false
identity on tax-withholding forms should not face criminal prosecu-
tion, and it has made using fraudulent information on a Wā4 a federal
crime. Moreover, in the present cases, there is certainly no suggestion
that the Kansas prosecutions frustrated any federal interests. Federal
authorities played a role in all three cases, and the Federal Govern-
ment fully supports Kansasās position in this Court. In the end, how-
ever, the possibility that federal enforcement priorities might be upset
is not enough to provide a basis for preemption. The Supremacy
Clause gives priority to āthe Laws of the United States,ā not the crim-
inal law enforcement priorities or preferences of federal officers. Art.
VI, cl. 2. Pp. 18ā20.
306 Kan. 1113, 401 P. 3d 588 (first judgment); 306 Kan. 1100, 401 P. 3d
4 KANSAS v. GARCIA
Syllabus
155 (second judgment); and 306 Kan. 1107, 401 P. 3d 159 (third judg-
ment), reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a
concurring opinion, in which GORSUCH, J., joined. BREYER, J., filed an
opinion concurring in part and dissenting in part, in which GINSBURG,
SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 589 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17ā834
_________________
KANSAS, PETITIONER
v.
RAMIRO GARCIA
KANSAS, PETITIONER
v.
DONALDO MORALES
KANSAS, PETITIONER
v.
GUADALUPE OCHOA-LARA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS
[March 3, 2020]
JUSTICE ALITO delivered the opinion of the Court.
Kansas law makes it a crime to commit āidentity theftā or
engage in fraud to obtain a benefit. Respondentsāthree al-
iens who are not authorized to work in this countryāwere
convicted under these provisions for fraudulently using an-
other personās Social Security number on state and federal
tax-withholding forms that they submitted when they ob-
tained employment. The Supreme Court of Kansas held
that a provision of the Immigration Reform and Control Act
of 1986 (IRCA), 100 Stat. 3359, expressly preempts the
Kansas statutes at issue insofar as they provide a basis for
these prosecutions. We reject this reading of the provision
2 KANSAS v. GARCIA
Opinion of the Court
in question, as well as respondentsā alternative arguments
based on implied preemption. We therefore reverse.
I
A
The foundation of our laws on immigration and naturali-
zation is the Immigration and Nationality Act (INA), 66
Stat. 163, as amended, 8 U. S. C. Ā§1101 et seq., which sets
out the ā āterms and conditions of admission to the country
and the subsequent treatment of aliens lawfully in the
country.ā ā Chamber of Commerce of United States of Amer-
ica v. Whiting, 563 U. S. 582, 587 (2011). As initially en-
acted, the INA did not prohibit the employment of illegal
aliens, and this Court held that federal law left room for the
States to regulate in this field. See De Canas v. Bica, 424
U. S. 351, 353 (1976).
With the enactment of IRCA, Congress took a different
approach. IRCA made it unlawful to hire an alien knowing
that he or she is unauthorized to work in the United States.
8 U. S. C. Ā§Ā§1324a(a)(1)(A), (h)(3). To enforce this prohibi-
tion, IRCA requires employers to comply with a federal em-
ployment verification system. Ā§1324a(b). Using a federal
work-authorization form (Iā9), employers āmust attestā
that they have āverifiedā that an employee āis not an unau-
thorized alienā by examining approved documents such as
a United States passport or alien registration card.
Ā§1324a(b)(1)(A); see also Ā§Ā§1324a(b)(1)(B)ā(D); 8 CFR
Ā§274a.2(a)(2) (2019) (establishing Form Iā9). This require-
ment applies to the hiring of any individual regardless of
citizenship or nationality. 8 U. S. C. Ā§1324a(b)(1). Employ-
ers who fail to comply may face civil and criminal sanctions.
See Ā§Ā§1324a(e)(4), (f ); 8 CFR Ā§274a.10. IRCA instructs em-
ployers to retain copies of their Iā9 forms and allows em-
ployers to make copies of the documents submitted by em-
ployees to show their authorization to work. 8 U. S. C.
Ā§Ā§1324a(b)(3)ā(4).
Cite as: 589 U. S. ____ (2020) 3
Opinion of the Court
IRCA concomitantly imposes duties on all employees, re-
gardless of citizenship. No later than their first day of em-
ployment, all employees must complete an Iā9 and attest
that they fall into a category of persons who are authorized
to work in the United States. Ā§1324a(b)(2); 8 CFR
Ā§274a.2(b)(1)(i)(A). In addition, under penalty of perjury,
every employee must provide certain personal infor-
mationāspecifically: name, residence address, birth date,
Social Security number, e-mail address, and telephone
number. It is a federal crime for an employee to provide
false information on an Iā9 or to use fraudulent documents
to show authorization to work. See 18 U. S. C. Ā§Ā§1028,
1546. Federal law does not make it a crime for an alien to
work without authorization, and this Court has held that
state laws criminalizing such conduct are preempted. Ari-
zona v. United States, 567 U. S. 387, 403ā407 (2012). But
if an alien works illegally, the alienās immigration status
may be adversely affected. See 8 U. S. C. Ā§Ā§1255(c)(2), (8),
1227(a)(1)(C)(i).
While IRCA imposes these requirements on employers
and employees, it also limits the use of Iā9 forms. A provi-
sion entitled āLimitation on use of attestation form,ā
Ā§1324a(b)(5), provides that Iā9 forms and āany information
contained in or appended to such form[s] may not be used
for purposes other than for enforcement of ā the INA or
other specified provisions of federal law, including those
prohibiting the making of a false statement in a federal mat-
ter (18 U. S. C. Ā§1001), identity theft (Ā§1028), immigration-
document fraud (Ā§1546), and perjury (Ā§1621). In addition,
8 U. S. C. Ā§1324a(d)(2)(F) prohibits use of āthe employ-
ment verification systemā āfor law enforcement purposes,ā
apart from the enforcement of the aforementioned federal
statutes.
Although IRCA expressly regulates the use of Iā9ās and
documents appended to that form, no provision of IRCA di-
rectly addresses the use of other documents, such as federal
4 KANSAS v. GARCIA
Opinion of the Court
and state tax-withholding forms, that an employee may
complete upon beginning a new job. A federal regulation
provides that all employees must furnish their employers
with a signed withholding exemption certificate when they
start a new job, but federal law apparently does not require
the discharge of an employee who fails to do so. See 26 CFR
Ā§Ā§31.3402(f )(2)ā1, (5)ā1 (2019). Instead, the regulation
provides that if an employee fails to provide a signed Wā4,
the employer must treat the employee āas a single person
claiming no exemptions.ā Ā§31.3402(f )(2)ā1(a). The submis-
sion of a fraudulent Wā4, however, is a federal crime. 26
U. S. C. Ā§7205.
Kansas uses a tax-withholding form (Kā4) that is similar
to the federal form. Kan. Stat. Ann. Ā§79ā3298 (2018 Cum.
Supp.); Kansas Dept. of Revenue, Notice 07ā07: New Kā4
Form for State Withholding (Sept. 5, 2007), www.ortho
don.com/home/document/KS-WithholdingForm.pdf; Kansas
Dept. of Revenue, Kansas Withholding Form Kā4, www.ks
revenue.org/k4info.html. Employees must attest to the ve-
racity of the information under penalty of perjury. Form
Kā4, Kansas Employeeās Withholding Allowance Certifi-
cate (rev. Nov. 2018), www.ksrevenue.org/pdf/k-4.pdf; Kan.
Stat. Ann. Ā§21ā5903; see also Kansas Dept. of Revenue, Tax
Fraud Enforcement, www.ksrevenue.org/taxfraud.html.
Finally, IRCA contains a provision that expressly
āpreempt[s] any State or local law imposing civil or criminal
sanctions (other than through licensing and similar laws)
upon those who employ, or recruit or refer for a fee for em-
ployment, unauthorized aliens.ā 8 U. S. C. Ā§1324a(h)(2)
(emphasis added). This provision makes no mention of
state or local laws that impose criminal or civil sanctions on
employees or applicants for employment. See ibid.
B
Like other States, Kansas has laws against fraud, forger-
ies, and identity theft. These statutes apply to citizens and
Cite as: 589 U. S. ____ (2020) 5
Opinion of the Court
aliens alike and are not limited to conduct that occurs in
connection with employment. The Kansas identity-theft
statute criminalizes the āusingā of any āpersonal identifying
informationā belonging to another person with the intent to
ā[d]efraud that person, or anyone else, in order to receive
any benefit.ā Kan. Stat. Ann. Ā§21ā6107(a)(1). ā[P]ersonal
identifying informationā includes, among other things, a
personās name, birth date, driverās license number, and So-
cial Security number. Ā§21ā6107(e)(2). Kansas courts have
interpreted the statute to cover the use of another personās
Social Security number to receive the benefits of employ-
ment. See State v. Meza, 38 Kan. App. 2d 245, 247ā250,
165 P. 3d 298, 301ā302 (2007).
Kansasās false-information statute criminalizes, among
other things, āmaking, generating, distributing or drawingā
a āwritten instrumentā with knowledge that it āfalsely
states or represents some material matterā and āwith intent
to defraud, obstruct the detection of a theft or felony offense
or induce official action.ā Ā§21ā5824.
The respondents in the three cases now before us are al-
iens who are not authorized to work in this country but nev-
ertheless secured employment by using the identity of other
persons on the Iā9 forms that they completed when they
applied for work. They also used these same false identities
when they completed their Wā4ās and Kā4ās. All three re-
spondents were convicted under one or both of the Kansas
laws just mentioned for fraudulently using another personās
Social Security number on tax-withholding forms. We
summarize the pertinent facts related to these three
prosecutions.
C
Ramiro Garcia. In August 2012, a local patrol officer
stopped Garcia for speeding and learned that Garcia had
been previously contacted by a financial crimes detective
about possible identity theft. App. 39ā44, 89ā91; 306 Kan.
6 KANSAS v. GARCIA
Opinion of the Court
1113, 1114, 401 P. 3d 588, 590 (2017). Local authorities ob-
tained the documents that Garcia had completed when he
began work at a restaurant, and a joint state-federal inves-
tigation discovered that Garcia had used another personās
Social Security number on his Iā9, Wā4, and Kā4 forms.
The State then charged Garcia with identity theft. The
complaint alleged that, when he began work at the restau-
rant, he used another personās Social Security number with
the intent to defraud and in order to receive a benefit. App.
9ā10.
Donaldo Morales. A joint state-federal investigation of
Morales began after the Kansas Department of Labor noti-
fied a Social Security agent that an employee at a local res-
taurant was using a Social Security number that did not
match the identifying information in the departmentās files.
306 Kan. 1100, 1101, 401 P. 3d 155, 156 (2017); App. to Pet.
for Cert. 73; App. 124ā125, 168ā170. A federal agent con-
tacted the restaurant and learned that Morales had used
another personās Social Security number on his Iā9, Wā4,
and Kā4 forms. The federal agent arrested Morales, who
then admitted that he had bought the Social Security num-
ber from someone he met in a park. App. 171ā172; 306
Kan., at 1101ā1102, 401 P. 3d, at 156; App. to Pet. for
Cert.73. This information was turned over to state prose-
cutors, who charged Morales with identity theft and mak-
ing false information. App. 124ā125; 306 Kan., at 1101, 401
P. 3d, at 156.
Guadalupe Ochoa-Lara. Ochoa-Lara came to the atten-
tion of a joint state-federal task force after officers learned
that he had used a Social Security number issued to some-
one else when he leased an apartment. 306 Kan. 1107,
1108ā1109, 401 P. 3d 159, 160ā161 (2017). The individual
to whom this number was lawfully assigned advised the in-
vestigating officers that she had no knowledge that another
person was using her number, and she later told authorities
Cite as: 589 U. S. ____ (2020) 7
Opinion of the Court
that income that she had not earned had been reported un-
der her number. Id., at 1109, 401 P. 3d, at 160. After con-
tacting the restaurant where Ochoa-Lara worked, investi-
gators determined that he had also used the same Social
Security number to complete his Iā9 and Wā4 forms. Ibid.
The State charged Ochoa-Lara with identity theft and mak-
ing false information for using anotherās Social Security
number on those documents.
D
In all three cases, respondents argued before trial that
IRCA preempted their prosecutions. They relied on 8
U. S. C. Ā§1324a(b)(5), which, as noted, provides that Iā9
forms and āany information contained in or appended to
such form[s] may not be used for purposes other than for
enforcement of ā the INA or other listed federal statutes. In
response, the State dismissed the charges that were based
on Iā9ās and agreed not to rely on the Iā9ās at trial. The
State maintained, however, that Ā§1324a(b)(5) did not apply
to the respondentsā use of false Social Security numbers on
the tax-withholding forms.
The trial courts allowed the State to proceed with the
charges based on those forms. The State entered the Kā4ās
and Wā4ās into evidence against Garcia and Morales, and
Ochoa-Lara stipulated to using a stolen Social Security
number on a Wā4. App. 109ā110; 306 Kan., at 1108ā1109,
401 P. 3d, at 160ā161.1 Respondents were convicted, and
āāāāāā
1 In Moralesās bench trial, the State also introduced into evidence his
Iā9 and a photocopy of a permanent resident card and Social Security
card that was appended to his Iā9. App. 152ā154, 178ā179. The trial
court, however, explicitly assured Morales that it would not make any
findings based on the Iā9, and defense counsel did not further object to
the introduction of the Iā9 into evidence. Id., at 150ā151. Before the
state appellate courts, Morales did not argue that admitting the Iā9 and
photocopy was error. Nor did his brief in opposition to certiorari argue
that the admission of these exhibits provided a ground for relief under
federal law. See this Courtās Rule 15.2.
8 KANSAS v. GARCIA
Opinion of the Court
three separate panels of the Kansas Court of Appeals af-
firmed their convictions.
A divided Kansas Supreme Court reversed, concluding
that āthe plain and unambiguous language of 8 U. S. C.
Ā§1324a(b)(5)ā expressly prohibits a State from using āany
information contained within [an] Iā9 as the bas[i]s for a
state law identity theft prosecution of an alien who uses an-
otherās Social Security information in an Iā9.ā 306 Kan., at
1130ā1131, 401 P. 3d at 599 (emphasis deleted). The court
added that ā[t]he fact that this information was included in
the Wā4 and Kā4 did not alter the fact that it was also part
of the Iā9.ā Id., at 1131, 401 P. 3d, at 599. In deciding the
appeal on these grounds, the court appears to have em-
braced the proposition that any fact to which an employee
attests in an Iā9 is information that is ācontained inā the Iā
9 and is thus subject to the restrictions imposed by
Ā§1324a(b)(5), namely, that this fact cannot be used by any-
one for any purpose other than the few listed in that provi-
sion. Nevertheless, the court suggested that its holding did
not sweep this broadly but was instead limited to the pros-
ecution of aliens for using a false identity to establish
āemployment eligibility.ā Id., at 1126, 1131, 401 P. 3d,
at 596, 600.
Justice Luckert concurred based on implied, not express,
preemption. In her view, IRCA occupies āthe fieldā within
which the prosecutions at issue fell, namely, āthe use of
false documents, including those using the identity of oth-
ers, when an unauthorized alien seeks employment.ā Id. at
1136, 401 P. 3d, at 602. Justice Luckert also opined that
the Kansas statutes, as applied in these cases, conflict with
IRCA because they āusur[p] federal enforcement discretionā
regarding the treatment of aliens who obtain employment
even though they are barred from doing so under federal
law. Ibid., 401 P. 3d, at 603.
Two members of the court, Justices Biles and Stegall, dis-
sented, and we granted review. 586 U. S. ___ (2019).
Cite as: 589 U. S. ____ (2020) 9
Opinion of the Court
II
The Supremacy Clause provides that the Constitution,
federal statutes, and treaties constitute āthe supreme Law
of the Land.ā Art. VI, cl. 2. The Clause provides āa rule of
decisionā for determining whether federal or state law ap-
plies in a particular situation. Armstrong v. Exceptional
Child Center, Inc., 575 U. S. 320, 324 (2015). If federal law
āimposes restrictions or confers rights on private actorsā
and āa state law confers rights or imposes restrictions that
conflict with the federal law,ā āthe federal law takes prece-
dence and the state law is preempted.ā Murphy v. National
Collegiate Athletic Assn., 584 U. S. ___, ___ (2018) (slip op.,
at 22).
In all cases, the federal restrictions or rights that are said
to conflict with state law must stem from either the Consti-
tution itself or a valid statute enacted by Congress. āThere
is no federal preemption in vacuo,ā without a constitutional
text, federal statute, or treaty made under the authority of
the United States. Puerto Rico Dept. of Consumer Affairs
v. ISLA Petroleum Corp., 485 U. S. 495, 503 (1988); see also
Whiting, 563 U. S., at 599 (preemption cannot be based on
āa āfreewheeling judicial inquiry into whether a state stat-
ute is in tension with federal objectives.ā ā) (citation omit-
ted); Virginia Uranium, Inc. v. Warren, 587 U. S. ___, ___
(2019) (lead opinion of GORSUCH, J.) (slip op., at 3) (āInvok-
ing some brooding federal interest or appealing to a judicial
policy preferenceā does not show preemption).
In some cases, a federal statute may expressly preempt
state law. See Pacific Gas & Elec. Co. v. State Energy Re-
sources Conservation and Development Commān, 461 U. S.
190, 203 (1983) (āIt is well established that within constitu-
tional limits Congress may preempt state authority by so
stating in express terms.ā). But it has long been established
that preemption may also occur by virtue of restrictions or
rights that are inferred from statutory law. See, e.g., Os-
10 KANSAS v. GARCIA
Opinion of the Court
born v. Bank of United States, 9 Wheat. 738, 865 (1824) (re-
jecting argument that a federal exemption from state regu-
lation ānot being expressed, ought not to be implied by the
Courtā). And recent cases have often held state laws to be
impliedly preempted. See, e.g., Arizona 567 U. S., at 400ā
408; Kurns v. Railroad Friction Products Corp., 565 U. S.
625, 630ā631 (2012); PLIVA, Inc. v. Mensing, 564 U. S. 604,
617ā618 (2011).
In these cases, respondents do not contend that the Kan-
sas statutes under which they were convicted are
preempted in their entirety. Instead, they argue that these
laws must yield only insofar as they apply to an unauthor-
ized alienās use of false documents on forms submitted for
the purpose of securing employment. In making this argu-
ment, respondents invoke all three categories of preemption
identified in our cases. They defend the Kansas Supreme
Courtās holding that provisions of IRCA expressly bar their
prosecutions. And they also argue that the decision below
is supported by āfieldā or āconflictā preemption or some com-
bination of the two. We consider these arguments in turn.
III
We begin with the argument that the state criminal stat-
utes under which respondents were convicted are expressly
preempted.
As noted, IRCA contains a provision that expressly
preempts state law, but it is plainly inapplicable here. That
provision applies only to the imposition of criminal or civil
liability on employers and those who receive a fee for re-
cruiting or referring prospective employees. 8 U. S. C.
Ā§1324a(h)(2). It does not mention state or local laws that
impose criminal or civil sanctions on employees or appli-
cants for employment.
The Kansas Supreme Court did not base its holding on
this provision but instead turned to Ā§1324a(b)(5), which is
far more than a preemption provision. This provision
Cite as: 589 U. S. ____ (2020) 11
Opinion of the Court
broadly restricts any use of an Iā9, information contained
in an Iā9, and any documents appended to an Iā9. Thus,
unlike a typical preemption provision, it applies not just to
the States but also to the Federal Government and all pri-
vate actors.
The Kansas Supreme Court thought that the prosecu-
tions in these cases ran afoul of this provision because the
charges were based on respondentsā use in their Wā4ās and
Kā4ās of the same false Social Security numbers that they
also inserted on their Iā9ās. Taken at face value, this theory
would mean that no information placed on an Iā9ā
including an employeeās name, residence address, date of
birth, telephone number, and e-mail addressācould ever be
used by any entity or person for any reason.
This interpretation is flatly contrary to standard English
usage. A tangible object can be ācontained inā only one
place at any point in time, but an item of information is dif-
ferent. It may be ācontained inā many different places, and
it is not customary to say that a person uses information
that is contained in a particular source unless the person
makes use of that source.
Consider a personās e-mail address, one of the bits of in-
formation that is called for on an Iā9. A personās e-mail
address may be ācontained inā a great many places. Indi-
viduals often provide their e-mail addresses to a wide circle
of friends, acquaintances, online vendors, work-related con-
tacts, and others. In addition, the records of every recipient
of an e-mail from a particular person will contain that ad-
dress.2 In ordinary speech, no one would say that a person
who uses an e-mail address has used information that is
contained in all these places.
Suppose that John used his e-mail address five years ago
to purchase a pair of shoes and that the vendor has that
āāāāāā
2 Of course, a considerate sender may remember to put the addresses
in the BCC line.
12 KANSAS v. GARCIA
Opinion of the Court
address in its files. Suppose that John now sends an e-mail
to Mary and that Mary sends an e-mail reply. No one would
say that Mary has used information contained in the files
of the shoe vendor.
Or consider this bit of information: that the first man set
foot on the moon on July 20, 1969.3 That fact was reported
in newspapers around the world, from Neil Armstrongās
hometown newspaper, the Wapakoneta (Ohio) Daily News4
to the Soviet newspaper Izvestia.5 Suppose that an elemen-
tary school student writes a report in which she states that
the first man walked on the moon in 1969. No one would
say that the student used information contained in the
Wapakoneta Daily News or Izvestia if she never saw those
publications. But it would be natural to say that the stu-
dent used information contained in a book in the school li-
brary if that is where she got the information for her report.
Accordingly, the mere fact that an Iā9 contains an item
of information, such as a name or address, does not mean
that information ācontained inā the Iā9 is used whenever
that name or address is later employed.
If this were not so, strange consequences would ensue.
Recall that 8 U. S. C. Ā§1324a(b)(5) applies to the Federal
āāāāāā
3 Twentieth Century Almanac 405 (R. Ferrell & J. Bowman eds. 1984);
NASA, The First Person on the Moon (last updated Apr. 9, 2009),
www.nasa.gov/audience/forstudents/k-4/stories/first-person-on-moon.html.
4 Neil Steps on the Moon, Wapakoneta Daily News, July 21, 1969, p. 1,
https://blogs.loc.gov/headlinesandheroes/2019/08/newspaper-coverage-of
-one-giant-leap-for-mankind.
5 See The First Steps: Luna Took the Envoys of the Earth, Izvestia,
Moscow Evening ed., Jul. 21, 1969, p. 1 (transl.); NASA, Astronautics
and Aeronautics, 1969: Chronology on Science, Technology, and Policy
233 (NASA SPā4014 1970); see also McFall-Johnsen, Newspaper Front
Pages From 50 Years Ago Reveal How the World Reacted to the Apollo
11 Moon Landing, Business Insider US, July 20, 2019, http://www.busi-
nessinsider.com/apollo-11-moon-landing-newspaper-front-pages-2019-7/.
Cite as: 589 U. S. ____ (2020) 13
Opinion of the Court
Government. Under 26 U. S. C. Ā§7205, it is a crime to will-
fully supply false information on a Wā4, and this provision
is not among those listed in 8 U. S. C. Ā§1324a(b)(5). Thus,
if an individual provided the same false information on an
Iā9 and a Wā4, the Federal Government could not prose-
cute this individual under 26 U. S. C. Ā§7205 even if the Gov-
ernment made no use whatsoever of the Iā9. And that is
just the beginning.
Suppose that an employee truthfully states on his Iā9
that his name is Jim Smith. Under the interpretation of 8
U. S. C. Ā§1324a(b)(5) that the Kansas Supreme Court seem-
ingly adopted, no one could use Jimās name for any purpose.
If he robbed a bank, prosecutors could not use his name in
an indictment. His employer could not cut a paycheck using
that name. His sister could not use his name to mail him a
birthday card.
The Kansas Supreme Court tried to fend off these conse-
quences by suggesting that its interpretation applied only
to the prosecution of aliens for using a false identity to es-
tablish āemployment eligibility.ā 306 Kan., at 1126, 401
P. 3d, at 596. But there is no trace of these limitations in
the text of Ā§1324a(b)(5). The point need not be belabored
any further: The argument that Ā§1324a(b)(5) expressly bars
respondentsā prosecutions cannot be defended.
Apparently recognizing this, respondents turn to
Ā§1324a(d)(2)(F), which prohibits use of the federal employ-
ment verification system6 āfor law enforcement purposes
other thanā enforcement of IRCA and the same handful of
federal statutes mentioned in Ā§1324a(b)(5): 18 U. S. C.
Ā§1001 (false statements), Ā§1028 (identity theft), Ā§1546
(immigration-document fraud), and Ā§1621 (perjury).
āāāāāā
6 This provision refers to āthe system,ā but it is apparent that this
means āthe employment verification system,ā which is described in some
detail in Ā§1324a(b). There is no other system to which this reference
could plausibly refer.
14 KANSAS v. GARCIA
Opinion of the Court
This argument fails because it rests on a misunderstand-
ing of the meaning of the federal āemployment verification
system.ā The sole function of that system is to establish
that an employee is not barred from working in this country
due to alienage. As described in Ā§1324a(b), the system in-
cludes the steps that an employee must take to establish
that he or she is not prohibited from working, the steps that
an employer must take to verify the employeeās status, and
certain related mattersāsuch as the preservation and copy-
ing of records that are used to show authorization to work.
The federal employment verification system does not in-
clude things that an employee must or may do to satisfy
requirements unrelated to work authorization. And com-
pleting tax-withholding documents plays no part in the pro-
cess of determining whether a person is authorized to
work.7 Instead, those documents are part of the apparatus
used to enforce federal and state income tax laws.8
For all these reasons, there is no express preemption in
these cases.
āāāāāā
7 Moreover, these documents are not always submitted when an em-
ployee begins a job. Instead, new Wā4ās and Kā4ās may be, and often are,
completed at later dates when an employee wishes to make changes that
affect the amount of withholding. 26 CFR Ā§31.3402(f )(2)-1; IRS, Publi-
cation 505: Tax Withholding and Estimated Tax 3 (May 15, 2019) (āDur-
ing the year, changes may occur . . . . When this happens, you may need
to give your employer a new Form Wā4 . . . . Otherwise, if you want to
change your withholding allowances for any reason, you can generally do
that whenever you wishā); Kansas Dept. of Revenue, Kansas Withhold-
ing Form Kā4, www.ksrevenue.org/k4info.html.
8 Respondents also contend that 18 U. S. C. Ā§1546(c) expressly
preempts the relevant Kansas statutes as applied in their prosecutions,
but it is impossible to see any basis for that argument in the statutory
text. This subsection, which is part of a provision that criminalizes cer-
tain conduct relating to immigration and authorization to work, provides
that the section ādoes not prohibit any lawfully authorized investigative,
protective, or intelligence activityā of a federal or state law enforcement
agency, a federal intelligence agency, or others engaged in certain activ-
ity relating to the prosecution of organized crime. How this provision
can be seen as expressly barring respondentsā prosecutions is a mystery.
Cite as: 589 U. S. ____ (2020) 15
Opinion of the Court
IV
We therefore proceed to consider respondentsā alternative
argument that the Kansas laws, as applied, are preempted
by implication. This argument, like all preemption argu-
ments, must be grounded āin the text and structure of the
statute at issue.ā CSX Transp., Inc. v. Easterwood, 507
U. S. 658, 664 (1993).
A
Respondents contend, first, that the Kansas statutes, as
applied, fall into a field that is implicitly reserved exclu-
sively for federal regulation. In rare cases, the Court has
found that Congress ālegislated so comprehensivelyā in a
particular field that it āleft no room for supplementary state
legislation,ā R. J. Reynolds Tobacco Co. v. Durham County,
479 U. S. 130, 140 (1986), but that is certainly not the situ-
ation here.
In order to determine whether Congress has implicitly
ousted the States from regulating in a particular field, we
must first identify the field in which this is said to have oc-
curred. In their merits brief in this Court, respondentsā pri-
mary submission is that IRCA preempts āthe field of fraud
on the federal employment verification system,ā Brief for
Respondents 41 (quotation altered), but this argument fails
because, as already explained, the submission of tax-
withholding forms is not part of that system.
At some points in their brief, respondents define the sup-
posedly preempted field more broadly as the āfield relating
to the federal employment verification system,ā id., at 42
(emphasis added); see also id., at 40, but this formulation
does not rescue the argument. The submission of tax-
withholding forms is fundamentally unrelated to the federal
employment verification system because, as explained, those
forms serve entirely different functions. The employment
verification system is designed to prevent the employment
of unauthorized aliens, whereas tax-withholding forms help
16 KANSAS v. GARCIA
Opinion of the Court
to enforce income tax laws. And using another personās So-
cial Security number on tax forms threatens harm that has
no connection with immigration law.
For instance, using another personās Social Security num-
ber on tax-withholding forms affects the wages reported to
federal and state tax authorities. In addition, many bene-
fitsāsuch as those for disability, unemployment, and re-
tirementāare tied to an individualās work status and in-
come. Inaccurate data also affect the accuracy of a Stateās
tax information.9
It is true that employees generally complete their Wā4ās
and Kā4ās at roughly the same time as their Iā9ās, but IRCA
plainly does not foreclose all state regulation of information
that must be supplied as a precondition of employment.
New employees may be required by law to provide all sorts
of information that has nothing to do with authorization to
work in the United States, such as information about age
(for jobs with a minimum age requirement), educational de-
grees, licensing, criminal records, drug use, and personal
information needed for a background check. IRCA surely
does not preclude States from requiring and regulating the
submission of all such information.
Respondents suggest that federal law precludes their
prosecutions because both the Kansas identity-theft statute
and the Kansas false-information statute require proof that
the accused engaged in the prohibited conduct for the pur-
pose of getting a ābenefit.ā Their argument is as follows.
Since the benefit alleged by the prosecution in these cases
was getting a job, and since the employment verification
system concerns authorization to work, the theory of re-
spondentsā prosecutions is related to that system.
This argument conflates the benefit that results from
āāāāāā
9 See, e.g., Kansas Dept. of Revenue, Annual Reports, www.ks
revenue.org/prannualreport.html; Kansas Dept. of Revenue, Tax Fraud
Enforcement, www.ksrevenue.org/taxfraud.html.
Cite as: 589 U. S. ____ (2020) 17
Opinion of the Court
complying with the federal employment verification system
(verifying authorization to work in the United States) with
the benefit of actually getting a job. Submitting Wā4ās and
Kā4ās helped respondents get jobs, but this did not in any
way assist them in showing that they were authorized to
work in this country. Thus, respondentsā ārelating toā argu-
ment must be rejected, as must the even broader definitions
of the putatively preempted field advanced by respondents
at earlier points in this litigation.
Contrary to respondentsā suggestion, IRCA certainly does
not bar all state regulation regarding the āuse of false doc-
uments . . . when an unauthorized alien seeks employ-
ment.ā Brief in Opposition 21. Nor does IRCA exclude a
State from the entire āfield of employment verification.ā
Id., at 22. For example, IRCA certainly does not prohibit a
public school system from requiring applicants for teaching
positions to furnish legitimate teaching certificates. And it
does not prevent a police department from verifying that
a prospective officer does not have a record of abusive
behavior.
Respondents argue that field preemption in these cases
āfollows directlyā from our decision in Arizona, 567 U. S.
387, Brief for Respondents 45ā46, but that is not so. In Ar-
izona, relying on our prior decision in Hines v. Davidowitz,
312 U. S. 52 (1941), we held that federal immigration law
occupied the field of alien registration. 567 U. S., at 400ā
402. āFederal law,ā we observed, āmakes a single sovereign
responsible for maintaining a comprehensive and unified
system to keep track of aliens within the Nationās borders.ā
Id., at 401ā402. But federal law does not create a compre-
hensive and unified system regarding the information that
a State may require employees to provide.
In sum, there is no basis for finding field preemption in
these cases.
18 KANSAS v. GARCIA
Opinion of the Court
B
We likewise see no ground for holding that the Kansas
statutes at issue conflict with federal law. It is certainly
possible to comply with both IRCA and the Kansas statutes,
and respondents do not suggest otherwise. They instead
maintain that the Kansas statutes, as applied in their pros-
ecutions, stand as āan obstacle to the accomplishment and
execution of the full purposesā of IRCAāone of which is
purportedly that the initiation of any legal action against
an unauthorized alien for using a false identity in applying
for employment should rest exclusively within the prosecu-
torial discretion of federal authorities. Brief for Respond-
ents 49ā55. Allowing Kansas to bring prosecutions like
these, according to respondents, would risk upsetting fed-
eral enforcement priorities and frustrating federal objec-
tives, such as obtaining the cooperation of unauthorized al-
iens in making bigger cases. Ibid.
Respondents analogize these cases to our holding in Ari-
zona, 567 U. S., at 404ā407āthat a state law making it a
crime for an unauthorized alien to obtain employment con-
flicted with IRCA, which does not criminalize that con-
ductābut respondentsā analogy is unsound. In Arizona, the
Court inferred that Congress had made a considered deci-
sion that it was inadvisable to criminalize the conduct in
question. In effect, the Court concluded that IRCA implic-
itly conferred a right to be free of criminal (as opposed to
civil) penalties for working illegally, and thus a state law
making it a crime to engage in that conduct conflicted with
this federal right.
Nothing similar is involved here. In enacting IRCA, Con-
gress did not decide that an unauthorized alien who uses a
false identity on tax-withholding forms should not face
criminal prosecution. On the contrary, federal law makes
it a crime to use fraudulent information on a Wā4. 26
U. S. C. Ā§7205.
The mere fact that state laws like the Kansas provisions
Cite as: 589 U. S. ____ (2020) 19
Opinion of the Court
at issue overlap to some degree with federal criminal provi-
sions does not even begin to make a case for conflict
preemption. From the beginning of our country, criminal
law enforcement has been primarily a responsibility of the
States, and that remains true today. In recent times, the
reach of federal criminal law has expanded, and there are
now many instances in which a prosecution for a particular
course of conduct could be brought by either federal or state
prosecutors. Our federal system would be turned upside
down if we were to hold that federal criminal law preempts
state law whenever they overlap, and there is no basis for
inferring that federal criminal statutes preempt state laws
whenever they overlap. Indeed, in the vast majority of
cases where federal and state laws overlap, allowing the
States to prosecute is entirely consistent with federal
interests.
In the present cases, there is certainly no suggestion that
the Kansas prosecutions frustrated any federal interests.
Federal authorities played a role in all three cases, and the
Federal Government fully supports Kansasās position in
this Court. In the end, however, the possibility that federal
enforcement priorities might be upset is not enough to pro-
vide a basis for preemption. The Supremacy Clause gives
priority to āthe Laws of the United States,ā not the criminal
law enforcement priorities or preferences of federal officers.
Art. VI, cl. 2.
Finally, contrary to respondentsā suggestion, these cases
are very different from Buckman Co. v. Plaintiffsā Legal
Comm., 531 U. S. 341 (2001), and Wisconsin Dept. of Indus-
try v. Gould Inc., 475 U. S. 282 (1986). In Buckman Co., the
preempted state tort claim for fraud on the Food and Drug
Administration threatened serious disruption of the sensi-
tive and highly technical process of approving medical de-
vices. 531 U. S., at 347ā353. In these cases, the state pros-
ecutions posed no comparable risk.
In Gould, the decision rested on a special preemption rule
20 KANSAS v. GARCIA
Opinion of the Court
governing state laws regulating matters that the National
Labor Relations Act āprotects, prohibits, or arguably pro-
tects.ā 475 U. S., at 286ā289; San Diego Building Trades
Council v. Garmon, 359 U. S. 236, 246 (1959). No similar
rule is operative or appropriate here.
* * *
For these reasons, the judgments of the Supreme Court
of Kansas are reversed, and these cases are remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
Cite as: 589 U. S. ____ (2020) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED
STATES
_________________
No. 17ā834
_________________
KANSAS, PETITIONER
v.
RAMIRO GARCIA
KANSAS, PETITIONER
v.
DONALDO MORALES
KANSAS, PETITIONER
v.
GUADALUPE OCHOA-LARA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS
[March 3, 2020]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring.
I agree that Kansasā prosecutions and convictions of re-
spondents for identity theft and making false information
are not pre-empted by Ā§101(a)(1) of the Immigration Reform
and Control Act of 1986, 8 U. S. C. Ā§1324a. I write
separately to reiterate my view that we should explicitly
abandon our āpurposes and objectivesā pre-emption
jurisprudence.
The founding generation treated conflicts between fed-
eral and state laws as implied repeals. PLIVA, Inc. v. Mens-
ing, 564 U. S. 604, 622 (2011) (plurality opinion). Then, as
now, courts disfavored repeals by implication. See, e.g.,
Warder v. Arell, 2 Va. 282, 299 (1796) (opinion of President
2 KANSAS v. GARCIA
THOMAS, J., concurring
Judge); 2 T. Cunningham, A New and Complete Law-
Dictionary (2d ed. 1771) (defining āStatuteā); 4 M. Bacon, A
New Abridgment of the Law 638 (3d ed. 1768). To overcome
this disfavor, legislatures included non obstante clauses in
statutes. See Nelson, Preemption, 86 Va. L. Rev. 225, 237ā
240, and nn. 42ā44 (2000) (collecting examples). Courts un-
derstood non obstante provisions to mean that, ā[r]ather
than straining the new statute in order to harmonize it with
prior law, [they] were supposed to give the new statute its
natural meaning and to let the chips fall where they may.ā
Id., at 242.
The Founders included a non obstante provision in the
Supremacy Clause. It directs that āthe Judges in every
State shall be boundā by the āConstitution, and the Laws of
the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, un-
der the Authority of the United States, . . . any Thing in the
Constitution or Laws of any state to the Contrary notwith-
standing.ā Art. VI, cl. 2. If we interpret the Supremacy
Clause as the founding generation did, our task is straight-
forward. We must use the accepted methods of interpreta-
tion to ascertain whether the ordinary meaning of federal
and state law ādirectly conflict.ā Wyeth v. Levine, 555 U. S.
555, 590 (2009) (THOMAS, J., concurring in judgment).
ā[F]ederal law pre-empts state law only if the two are in
logical contradiction.ā Merck Sharp & Dohme Corp. v. Al-
brecht, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring)
(slip op., at 2); see also Nelson, supra, at 236ā237.
The doctrine of āpurposes and objectivesā pre-emption
impermissibly rests on judicial guesswork about ābroad fed-
eral policy objectives, legislative history, or generalized no-
tions of congressional purposes that are not contained
within the text of federal law.ā Wyeth, supra, at 587 (opin-
ion of THOMAS, J.); see also Arizona v. United States, 567
U. S. 387, 440 (2012) (THOMAS, J., concurring in part and
dissenting in part). I therefore cannot apply āpurposes and
Cite as: 589 U. S. ____ (2020) 3
THOMAS, J., concurring
objectivesā pre-emption doctrine, as it is contrary to the Su-
premacy Clause.*
In these cases, the Court correctly distinguishes our āpur-
poses and objectivesā precedents and does not engage in a
ā āfreewheeling judicial inquiry into whether a state statute
is in tension with federal objectives.ā ā Wyeth, supra, at 588
(opinion of THOMAS, J.) (quoting Bates v. Dow Agrosciences
LLC, 544 U. S. 431, 459 (2005) (THOMAS, J., concurring in
judgment in part and dissenting in part)). It also acknowl-
edges that ā[t]he Supremacy Clause gives priority to āthe
laws of the United States,ā not the criminal law enforcement
priorities or preferences of federal officers.ā Ante, at 19. Be-
cause the Court rejects respondentsā āpurposes and objec-
tivesā argument without atextual speculation about legisla-
tive intentions, I join its opinion in full.
āāāāāā
*I am also skeptical of field pre-emption, āat least as applied in the
absence of a congressional command that a particular field be pre-
empted.ā Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520
U. S. 564, 617 (1997) (THOMAS, J., dissenting). For today, however, it
suffices to say that the Court correctly applies our field pre-emption prec-
edents and that ānothing in the text of the relevant federal statutes in-
dicates that Congress intendedā to pre-empt a pertinent field. Arizona,
567 U. S., at 439 (opinion of THOMAS, J.).
Cite as: 589 U. S. ____ (2020) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17ā834
_________________
KANSAS, PETITIONER
v.
RAMIRO GARCIA
KANSAS, PETITIONER
v.
DONALDO MORALES
KANSAS, PETITIONER
v.
GUADALUPE OCHOA-LARA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS
[March 3, 2020]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring
in part and dissenting in part.
I agree with the majority that nothing in the Immigration
Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, ex-
pressly preempts Kansasā criminal laws as they were ap-
plied in the prosecutions at issue here. But I do not agree
with the majorityās conclusion about implied preemption.
When we confront a question of implied preemption, the
words of the statute are especially unlikely to determine the
answer by themselves. Nonetheless, in my view, IRCAās
text, together with its structure, context, and purpose,
make it ā āclear and manifestā ā that Congress has occupied
at least the narrow field of policing fraud committed to
demonstrate federal work authorization. Arizona v. United
States, 567 U. S. 387, 400 (2012) (quoting Rice v. Santa Fe
2 KANSAS v. GARCIA
Opinion of BREYER, J.
Elevator Corp., 331 U. S. 218, 230 (1947)); see Brief for
United States as Amicus Curiae in Puente Arizona v. Ar-
paio, No. 15ā15211 etc. (CA9), p. 15 (contending that the
Act preempts state criminal laws āto the extent they regu-
late fraud committed to demonstrate authorization to work
in the United States under federal immigration lawā); Tr.
of Oral Arg. 22ā23 (standing by the Governmentās position
in Puente Arizona). That is to say, the Act reserves to the
Federal Governmentāand thus takes from the Statesāthe
power to prosecute people for misrepresenting material in-
formation in an effort to convince their employer that they
are authorized to work in this country.
The Act creates what we have called āa comprehensive
schemeā to ācomba[t] the employment of illegal aliens.ā
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137,
147 (2002). To that end, the statuteās text sets forth highly
detailed requirements. The Act specifies, for example: that
employers and employees must affirm in writing that the
employee is authorized to work in the United States, 8
U. S. C. Ā§Ā§1324a(b)(1)(A), (b)(2); that only certain docu-
ments suffice to demonstrate identity and work authoriza-
tion (e.g., a passport or alien-registration card),
Ā§Ā§1324a(b)(1)(B)ā(D); that employers and employees must
affirm the truthfulness of the information they have given
by āa hand-written or an electronic signature,ā
Ā§Ā§1324a(b)(1)(A), (b)(2); that all this information must be
consolidated on the Iā9 form, ibid.; that the employer must
store the Iā9 in āpaper, microfiche, microfilm, or electronicā
form, typically for three years, Ā§1324a(b)(3); and that em-
ployers must make it available for federal inspection, ibid.
IRCA also contains two carefully calibrated sets of sanc-
tions for noncompliance. On the employer side, the Act
makes it unlawful for employers to hire someone without
complying with the Iā9 process, Ā§1324a(a)(1)(B), or to re-
cruit, hire, or employ someone the employer knows to be
unauthorized, Ā§Ā§1324a(a)(1)(A), (a)(2). The Act subjects
Cite as: 589 U. S. ____ (2020) 3
Opinion of BREYER, J.
employers who violate these prohibitions to an escalating
series of civil and criminal penalties. See Ā§Ā§1324a(e)(4)ā(5),
(f ). It also expressly āpreempt[s] any State or local law im-
posing civil or criminal sanctionsā on those employers, but
with a saving clause that gives States some room to regu-
late employers (and only employers) in this area āthrough
licensing and similar laws.ā Ā§1324a(h)(2); see also Chamber
of Commerce of United States of America v. Whiting, 563
U. S. 582, 587 (2011).
On the employee side, IRCA is somewhat more lenient.
Employees, unlike employers, are not subject to punish-
ment for mere failure to complete the paperwork that the
Act requires. See Ā§1324a(e)(5). And while employees who
work without authorization may suffer adverse immigra-
tion consequences, unauthorized work does not by itself
trigger federal criminal prosecution. See Arizona, 567
U. S., at 404ā405 (citing Ā§Ā§1227(a)(1)(C)(i), 1255(c)(2),
(c)(8)). Rather, the Act makes it a federal crime for anyone
to commit fraud āfor the purpose of satisfyingā the Actās re-
quirements. 18 U. S. C. Ā§1546(b).
Our precedent demonstrates that IRCA impliedly
preempts state laws that trench on Congressā detailed and
delicate design. In Arizona, we invalidated a state law that
made it a crime for an unauthorized alien to work. 567
U. S., at 403. In reaching that conclusion, we acknowledged
that the Actās employer-related sections contain an express
preemption provision, while the employee-related provi-
sions do not. Id., at 406. Even so, the Actās employee-
related provisions retained, through implication, preemp-
tive force. Id., at 406ā407.
Congress, we explained, āmade a deliberate choice not to
impose criminal penalties on aliens whoā merely āseek, or
engage in, unauthorized employment.ā Id., at 405. The Act
puts combating the employment of unauthorized aliens at
the forefront of federal immigration policy. Id., at 404. But
it also reflects āa considered judgmentā not to pursue that
4 KANSAS v. GARCIA
Opinion of BREYER, J.
goal at all costs. Id., at 405. āUnauthorized workers trying
to support their familiesā usually āpose less danger than al-
ien smugglers or aliens who commit a serious crime.ā Id.,
at 396. And they may have āchildren born in the United
States, long ties to the community,ā or other attributes that
could counsel in favor of prosecutorial restraint. Ibid.
We ultimately held in Arizona that the States thus may
not make criminal what Congress did not, for any such
state law āwould interfere with the careful balance struck
by Congress with respect to unauthorized employment of
aliens.ā Id., at 406. Given that āobstacle to the regulatory
system Congress chose,ā we concluded that the state law at
issue conflicted with the federal Act and was therefore
preempted. Id., at 406ā407.
State laws that police fraud committed to demonstrate
federal work authorization are similarly preempted. Even
though IRCA criminalizes that conduct, the Act makes
clear that only the Federal Government may prosecute peo-
ple for misrepresenting their federal work-authorization
status. This is so for two reasons.
First, the Act takes from the States the most direct means
of policing work-authorization fraud. It prohibits States
from using for that purpose both the Iā9 and the federal
employment verification system more generally. See 8
U. S. C. Ā§Ā§1324a(b)(5), (d)(2)(F). Those two provisions
strongly suggest that the Act occupies the field of policing
fraud committed to demonstrate federal work authoriza-
tion. Otherwise, their express prohibitions would not con-
strain the States in any meaningful way. States could
evade the Act simply by creating their own work-
authorization form with the same requirements as the Iā9,
requiring employees to submit that form at the same time
as the Iā9, and prosecuting employees who make misrepre-
sentations on the state form. No one contends that the
States may do that.
Second, consider another part of our decision in Arizona.
Cite as: 589 U. S. ____ (2020) 5
Opinion of BREYER, J.
We also addressed in that case a different federal statute,
one establishing a federal alien-registration system. See
567 U. S., at 400ā403. Pointing to that statuteās āfull set of
standards governing alien registration, including the pun-
ishment for noncompliance,ā we concluded that Congress
had enacted āa comprehensive and unified system to keep
track of aliens within the Nationās borders.ā Id., at 401ā
402. The statute therefore left no room for a state law de-
signed to police violations of the federal alien-registration
system. Similarly, IRCAās intricate procedures and penal-
ties create a comprehensive and unified system to keep
track of who is authorized to work within the Nationās bor-
ders. See supra, at 2ā3. This too shows that criminal en-
forcement falls to the Federal Government alone.
Nor does it matter that the state statutes invalidated in
Arizona had expressly targeted aliens. In preemption
cases, we must consider not just what a state law says, but
also what it does. Wos v. E. M. A., 568 U. S. 627, 637 (2013).
For this reason, even generally applicable and facially neu-
tral state laws may be preempted when applied in a partic-
ular factual context in a particular way. See, e.g., Buckman
Co. v. Plaintiffsā Legal Comm., 531 U. S. 341, 347ā350
(2001) (rejecting claims grounded in generally applicable
state-law principles because they were based on a
preempted theory of liability); Northwest, Inc. v. Ginsberg,
572 U. S. 273, 289 (2014) (similar). And here, Kansas ap-
plied its criminal laws to do what IRCA reserves to the Fed-
eral Government aloneāpolice fraud committed to demon-
strate federal work authorization. That is true even though
Kansas prosecuted respondents based on their tax-
withholding forms, rather than their Iā9s.
Take Donaldo Morales, for example. Kansas charged him
under two state antifraud statutes. Both required the State
to prove, as an element, an intent to defraud. See Kan. Stat.
Ann. Ā§Ā§21ā5824(a), 21ā6107(a)(1) (2018 Cum. Supp.). Kan-
6 KANSAS v. GARCIA
Opinion of BREYER, J.
sas law defines āintent to defraudā as the āintention to de-
ceive another person, and to induce such other person, in
reliance upon such deception, toā transfer a property right.
Ā§21ā5111(o). Kansasā theory of guilt was that Morales in-
tended to deceive his employer about his federal work-
authorization status so that his employer, in reliance upon
that deception, would give him a job. At trial, the State
elicited testimony that employees needed āproof of eligibil-
ity to work in the United States.ā App. 149. It then argued
that Morales knew people like him had to use a false Social
Security number to get a job because of āhow they were
here.ā Id., at 176. The trial court, sitting as the finder of
fact, confirmed how it understood the reliance that Morales
induced: Morales convinced his employer that he was āa le-
gal citizen,ā even though he was in truth āundocumented.ā
Id., at 179ā181.
On different facts, there would have been no preemption.
Had Kansas proved instead that Morales used a false Social
Security number on his tax-withholding forms to induce an-
other sort of reliance (e.g., to hide a criminal history), or
perhaps to obtain another kind of benefit (e.g., to pay less
in taxes), IRCA would permit the prosecution. But that is
not what Kansas did. What Kansas did was prosecute Mo-
rales for misrepresenting his federal work-authorization
status for the purpose of obtaining employment. Kansasā
prosecution of Morales thus fell squarely within the field
that, in my view, the federal Act preempts.
By permitting these prosecutions, the majority opens a
colossal loophole. Starting a new job almost always in-
volves filling out tax-withholding forms alongside an Iā9.
So unless they want to give themselves away, people hoping
to hide their federal work-authorization status from their
employer will put the same false information on their tax-
withholding forms as they do on their Iā9. To let the States
prosecute such people for the former is, in practical effect,
to let the States police the latter. And policing the latter is
Cite as: 589 U. S. ____ (2020) 7
Opinion of BREYER, J.
what the Act expressly forbids.
For these reasons, I would hold that federal law impliedly
preempted Kansasā criminal laws as they were applied in
these cases. Because the majority takes a different view,
with respect, I dissent.