The U.S. Supreme Court will soon hear a case (Kansas v. Garcia) that legal analysts warn may empower state and local prosecutors with political ambitions to go after businesses on immigration grounds. A decision in favor of Kansas may open the floodgates to legal actions against restaurants, landscapers, factories and construction firms, putting businesses at great risk even if under federal law they did not knowingly hire someone without work authorization.
Would a decision in favor of Kansas make it easier for zealous prosecutors to investigate the hiring of unauthorized immigrants at Trump properties or any other business more associated with either political party? To better understand the case and its implications, I interviewed Paul W. Hughes, a partner in Mayer Brown’s Supreme Court & Appellate practice in Washington, D.C.
Stuart Anderson: What are the facts of the case?
Paul W. Hughes: Local police officers in Kansas stopped three individuals, at different times, for ordinary traffic offenses. The officers came to suspect that the individuals lacked lawful immigration status. Officers began to investigate their immigration and employment status.
Ultimately, a local Kansas prosecutor charged the three individuals with making false statements, including on the I-9 (a federal document showing work authorization) and on the K-4 (a state document used, in part, for tax withholdings). The state trial court dismissed the charges relating to the I-9 but allowed the K-4 theory to proceed.
The Kansas State Supreme Court – in agreement with the Iowa Supreme Court – held that this sort of criminal prosecution is barred by federal law. No state supreme courts have ever allowed such a prosecution theory to proceed.
Anderson: What is the key immigration policy question in Kansas v. Garcia that could affect businesses?
Hughes: Federal law determines the categories of immigrants who are authorized to work – and, conversely, those who are not. Because this is an exclusive federal prerogative, courts have long held that only the federal government can prosecute employees and employers for alleged violations of this work-authorization scheme.
The question posed here is whether Kansas can circumvent that law by proceeding with effectively identical prosecutions – but framing them as turning on the state K-4 tax form. If Kansas is able to do so, local city and county prosecutors could engage in mass prosecutions of employees and employers that are, in substance and effect, designed to target the employment of immigrants who lack work authorization.
Kansas has not done any of the things that one would expect in a prosecution focusing on taxation. The state did not introduce tax returns as documents, nor did the state prosecute individuals for underpayment or non-payment of state income tax.
Anderson: What do you think would be the impact on businesses of a decision in favor of Kansas?
Hughes: If state and local prosecutors can proceed with this sort of prosecution of employees, they can likewise prosecute employers. Since many state and local prosecutors are elected officials – or individuals who eye elected office – high-profile prosecutions against employers would result.
Anderson: What position has the Trump administration taken on the case?
Hughes: The Trump administration has altered the position of the federal government. Previously, in similar cases, the federal government has argued for federal preemption, arguing that this sort of immigration prosecution is uniquely federal. This administration, however, has changed longstanding federal policy and now argues against federal preemption.
Anderson: If the case is decided in favor of Kansas, then wouldn’t it be easier for local or state prosecutors to investigate past or present cases of hiring unauthorized immigrants at Trump country clubs and other properties? And couldn’t Republican prosecutors today or in the future go after companies aligned with Democrats?
Hughes: Politically-minded prosecutors could certainly use this theory of state criminal law to bring numerous sorts of charges against a diverse array of employers. Federal preemption is critical to ensure calibrated law enforcement that is responsive to the appropriate use of immigration resources and that maintains a uniform national policy towards immigration.
Anderson: When do you expect the case to be heard and a decision issued?
Hughes: The Supreme Court is likely to hear oral argument in October or November 2019. A decision will likely be reached before the Court recesses for the term in June 2020.
Anderson: What do you think is at stake in Kansas v. Garcia?
Hughes: Regulating employment aspects of immigration has long been a core federal function. It brings uniformity and consistency to a crucial area of immigration law and policy. The issues at stake here are whether states can directly enter the immigration enforcement arena, prosecuting individuals and businesses for violations of state law. If Kansas succeeds, that would fundamentally upset the balance of immigration-related criminal prosecutions in the United States and put many businesses in great jeopardy at the hands of politically ambitious prosecutors.
