Wednesday, October 9, 2019

SCOTUS oral argument preview: Preemption of state identity-theft prosecutions of noncitizens


Pratheepan Gulasekaram on Scotusblog provides a preview of the upcoming (October 16) oral argument ("Argument preview: Preemption of state identity-theft prosecutions of noncitizens") in Kansas v. Garcia.  The conclusion:

"The outcome in Garcia could have significant repercussions for state identity-theft prosecutions and beyond. A ruling for Kansas might portend increased involvement by states keen on enhancing immigration enforcement, by allowing them to use existing identity-theft and fraud laws – or to enact new ones – to target noncitizens. A ruling for Kansas might also lead to increased coordination between immigration authorities and state prosecutors, allowing the federal government to amplify immigration enforcement without spending additional federal funds.

The breadth of the court’s preemption analysis could implicate other immigration federalism cases, as well. Foremost among those are the several lawsuits concerning sanctuary or noncooperation policies enacted by states and localities, some of which turn on how to interpret Congress’s preemptive intent in the Immigration and Nationality Act, and whether preemption in the immigration context works differently than in other regulatory areas.

And finally, outside of immigration law, the Supreme Court’s analytic approach might clarify or modify aspects of the preemption doctrine more generally. The court’s opinion may elucidate how to differentiate express and implied preemption cases, which interpretative tools should govern in each instance, and how broadly to apply field and obstacle preemption."


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