Can States Prosecute Identity Theft by Illegal Aliens?

            We are seeing another consequence of the 2016 presidential election. According to Jason Hopkins, the Supreme Court recently ruled “that state governments can prosecute illegal aliens of identity theft, including aliens who use false Social Security numbers to unlawfully gain employment.” A majority in a 5-4 decision said that federal election law does not forbid state prosecution of “illegal aliens who used false or stolen identification.”


            Why is this decision noteworthy? There are federal crimes, and there are state crimes. States are not supposed to prosecute federal crimes. Immigration is a federal matter, and Social Security numbers are dispensed by a federal agency. Therefore, some people believe that anything having to do with them should be a federal matter. However, the Supreme Court said, “Not so fast.”

This case revolved around interpretation of the Immigration Reform and Control Act (IRCA), which makes it a federal crime to lie on employment authorization forms.

While liberal justices on the Supreme Court argued that immigration-related employment fraud is a federal matter, conservatives found that aliens can be also subject to criminal prosecution by states if they use someone else’s information.

“Although IRCA expressly regulates the use of I-9’s and documents appended to that form, no provision of IRCA directly addresses the use of other documents, such as federal and state tax-withholding forms, that an employee may complete upon beginning a new job,” wrote Justice Samuel Alito on behalf of the court’s majority.

Alito was joined by Justices John Roberts, Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch.

            The conservative majority of the Supreme Court – with Gorsuch and Kavanaugh nominated by Donald Trump – overturned a Kansas Supreme Court ruling from 2017 that “voided the convictions of three restaurant workers who used false identities to gain employment.” The three employees did not have permission to work in the United States and gave false identities to get employment.

The state Supreme Court found that the Immigration Reform and Control Act prohibited states from prosecuting such cases as they were solely federal matters.

Kansas, however, countered that the prosecutions were not related to immigration, and that such an interpretation would undermine its capability to fight identity theft.

            The U.S. Supreme Court sided with Kansas and made it possible for states to prosecute identity theft cases that had nothing to do with immigration. This means that the three aliens who stole identities in order to work illegally in the United States can be prosecuted by Kansas for their actions. Identity theft is a terrible crime, and perpetrators should be held accountable for it.