from the Iowa District Court for Muscatine County, Stuart P.
seeks interlocutory review of denial of motion to dismiss.
REVERSED AND REMANDED WITH DIRECTIONS.
B. Mears of Mears Law Office, Iowa City, for appellant.
J. Miller, Attorney General, Darrel Mullins, Assistant
Attorney General, and Alan R. Ostergren, County Attorney, for
case, we are called upon to determine if an undocumented
noncitizen brought to Iowa as an eleven-year-old child by her
parents, educated in Iowa public schools, who has lived in
Iowa continuously, who is a mother of four children who are
citizens of the United States, and who applied for and was
granted deferred action under the Department of Homeland
Security's Deferred Action for Childhood Arrivals
(DACA) program, may be prosecuted by
State authorities for using false documents to obtain federal
employment authorization even though federal law pervasively
regulates employment of undocumented noncitizens. The answer
to this question is no.
Factual Background and Proceedings.
Facts Surrounding Martha Martinez.
Martinez came to Muscatine with her parents in 1997 when she
was eleven years old. She attended Muscatine public schools
and worked for several different employers in Muscatine
she was seventeen years old, Martinez applied for and
obtained an Iowa driver's license. She used a birth
certificate in the name of Diana Castaneda, a person with a
social security number, to obtain the license. She renewed
the license in 2008.
2013, Martinez used her fictitious driver's license and a
social security card in the same name to obtain employment at
Packer Sanitation, a business located in Muscatine County.
The documents were used to obtain what is referred to as I-9
2013, Martinez applied for and received temporary lawful
immigration status from the Department of Homeland Security
pursuant to the DACA program. Because she now had temporary
lawful immigration status, she was able to obtain work
authorization in her own name from the Department of Homeland
of her lawful status, Martinez was now eligible, under Iowa
law, to obtain an Iowa driver's license in her own name.
In March 2014, she applied for a license in her own name,
using her newly issued social security card.
Iowa Department of Transportation (IDOT), apparently using
facial recognition software, noted a similarity between her
photograph taken in 2014 and earlier photographs taken when
she obtained her driver's license in 2003 and 2008. As a
result, IDOT commenced an investigation.
to the notes of the IDOT investigator, a woman appeared at
the Iowa City drivers' license station on May 2, 2003,
with a California birth certificate in the name of Diana
Casteneda. She presented two rent receipts as proof of
residency in West Liberty. On October 28, 2008, a woman
appeared at the Iowa City drivers' license station and
applied for an Iowa ID using the name of Diana Castaneda.
March 6, 2014, a woman appeared at the Iowa City drivers'
license station and applied for an Iowa driver's license.
The person presented an ID and employment authorization card
in the name of Martha Martinez. The photograph of Martinez,
however, appeared to match the photograph of Diana Castaneda
from March 2, 2003, and October 28, 2008.
investigator determined that wages were being obtained by
Diana Castaneda at Packer Sanitation. The investigator
contacted Packer Sanitation and obtained Diana
Castaneda's I-9, copies of her Iowa ID, social security
card, and payroll history showing she obtained wages in
excess of $1000. The investigator contacted immigration
authorities and learned that Martinez had a valid employment
investigator contacted Martinez by phone. Martinez admitted
she had obtained the false IDs in 2003 and 2008. She told the
investigator she came to the United States as a child and now
had three children and was pregnant with a fourth child. She
borrowed a birth certificate in the name of Diana Castaneda
but did not know her. She had been recently working but had
quit due to her pregnancy. She admitted prior employment
under the name and social security number of Diana Castaneda.
The investigator informed Martinez that he would recommend
she be charged with identity theft. The investigator thanked
Martinez for being honest and cooperative.
Iowa Criminal Proceedings.
State filed two criminal charges against Martinez. Count I
alleged the crime of identity theft under Iowa Code section
715A.8 (2013). This Code provision states, "A person
commits the offense of identity theft if the person
fraudulently uses or attempts to fraudulently use
identification information of another person, with the intent
to obtain credit, property, services, or other benefit."
Iowa Code § 715A.8(2). If the value of the credit,
property, or services exceeds one thousand dollars, the
person commits a class "D" felony. Id.
§ 715A.8(3). If the value of the credit, property, or
services does not exceed one thousand dollars, the person
commits an aggravated misdemeanor. Id. According to
the minutes of testimony, the basis for the intent to obtain
"credit, property, or services" was employment at
Packer Sanitation earning wages in excess of $1000.
II alleged the crime of forgery under Iowa Code section
715A.2(1). This Code provision declares that a person is
guilty of the crime of forgery if, with intent to defraud or
injure anyone, a person "[m]akes, completes, executes,
authenticates, issues, or transfers a writing so that it
purports to be the act of another who did not authorize that
act." Id. § 715A.2(1)(b). The
provision further provides that forgery is a class
"D" felony if the writing is or purports to be
"[a] document prescribed by statute, rule, or regulation
for entry into or as evidence of authorized stay or
employment in the United States." Id. §
filed a motion to dismiss. Citing Arizona v. United
States, Martinez argued that federal law preempted her
prosecution under the Iowa identity theft and forgery
statutes, both on their face and as applied. 567 U.S. 387,
___, 132 S.Ct. 2492, 2510 (2012). The State resisted. The
State distinguished Arizona, noting that in that
case, the Arizona statute specifically criminalized failure
to comply with federal alien registration requirements while
the statutes under which Martinez was charged are independent
of federal law.
district court denied the motion to dismiss. According to the
court, the charges of identity theft and forgery were
"state crimes independent of Defendant's immigration
status." In prosecuting Martinez, the court stated, the
State was not acting to enforce or attack federal immigration
law. Therefore, Martinez's prosecution was not preempted
by federal law.
sought interlocutory review. We granted the application.
Overview of Federal Immigration Law Related to Unauthorized
Employment of Illegal Aliens.
Government of the United States has broad, undoubted power
over the subject of immigration and the status of
aliens." Id. at ___, 132 S.Ct. at 2498. This
broad authority is in part based upon the federal
government's power to "establish a uniform Rule of
Naturalization." Id. (quoting U.S. Const. art.
I, § 8, cl. 4). It is also based upon the federal
government's inherent power as a sovereign to control and
conduct relations with foreign governments. Id. As
demonstrated by an amicus brief in Arizona filed by
sixteen nations, immigration policy can affect trade,
investment, tourism, and diplomatic relations for the entire
Nation as well as the perceptions and expectations of aliens
on this country who seek full protection of its law.
See Mot. of Argentina, Bolivia, Brazil, Chile,
Colombia, Costa Rica, Dominican Republic, Ecuador, El
Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay,
Peru and Uruguay for Leave to Join the United Mexican States
as Amici Curiae in Supp. of Resp't at 6,
Arizona, 567 U.S. 387, 132 S.Ct. 2492 (2012) (No.
11-182), 2012 WL 1114006, at *6. Current national and
international debate regarding building a wall on our
southern border and the circumstances under which noncitizens
from other nations may enter the United States, along with
discussions about who should pay for the wall, has an impact
on domestic immigration and international relations.
Early regulation and plenary authority.
United States Supreme Court has observed that the supremacy
of national power in the general field of foreign
affairs-including immigration, naturalization, and
deportation-is made clear by the United States Constitution.
Hines v. Davidowitz, 312 U.S. 52, 62, 61
S.Ct. 399, 401-02 (1941). Yet, until 1891, no comprehensive
immigration legislation existed, and a number of states
enacted discriminatory legislation. See Kevin J.
Fandl, Putting States Out of the Immigration Law
Enforcement Business, 9 Harv. L. & Pol'y Rev.
529, 530-31 (2015) [hereinafter Fandl]. Responding to
discriminatory legislation against Chinese aliens, the United
States Supreme Court in Chy Long v. Freeman, 92 U.S.
275, 280 (1875), and Fong Yue Ting v. United States,
149 U.S. 698, 707, 13 S.Ct. 1016, 1019 (1893), emphasized the
need for "absolute and unqualified" power to deport
aliens in the interest of national sovereignty. Fandl, 9
Harv. L. & Pol'y Rev. at 531-32 (quoting Fong Yue
Ting, 149 U.S. at 707, 13 S.Ct. at 1019).
Overview of Immigration and Nationality Act.
exercised its power over immigration through enactment of the
Immigration and Nationality Act (INA) which, along with other
enactments, provides a "comprehensive federal statutory
scheme for regulation of immigration and naturalization"
and sets "the terms and conditions of admission to the
country and the subsequent treatment of aliens lawfully in
the country." Chamber of Commerce of U.S. v.
Whiting, 563 U.S. 582, 587, 131 S.Ct. 1968, 1973 (2011)
(quoting De Canas v. Bica, 424 U.S. 351, 353, 359,
96 S.Ct. 933, 935, 938 (1976), superseded by
statute, Immigration Reform and Control Act of 1986,
Pub. L. No. 99-603, 100 Stat. 3359, as recognized in
Chamber of Commerce, 563 U.S. at 590, 131 S.Ct. at
1975); see 8 U.S.C. §§ 1101-1537.
of brief summary, the INA provides criteria by which
"aliens, " defined as "any person not a
citizen or national of the United States, " may enter,
visit, and reside in the country. 8 U.S.C. § 1101(a)(3);
see Lozano v. City of Hazelton, 620 F.3d 170, 196
(3d Cir. 2010), vacated on other grounds by 563 U.S.
1030, 131 S.Ct. 2958 (2011). The INA establishes three
categories of aliens: (1) nonimmigrants, (2) immigrants, and
(3) refugees and asylees. 8 U.S.C. §§ 1101(a)(15),
1151, 1157-58; see Lozano, 620 F.3d at 196. In order
to be legally admitted to the United States, aliens must meet
the eligibility criteria of one of these categories.
Lozano, 620 F.3d at 196. Certain aliens who have
health conditions, have been convicted of certain crimes,
present security concerns, or have been recently removed from
the United States are inadmissible. 8 U.S.C. § 1182.
in the United States unlawfully are subject to removal, with
removal proceedings under the INA setting forth the
"sole and exclusive procedure for determining whether an
alien may be admitted to the United States or, if the alien
has been so admitted, removed from the United States."
Id. § 1229a(a)(3). INA removal procedures
provide for notice, the opportunity to be heard, the
opportunity to be represented by counsel, and the possibility
of discretionary relief from removal including postponement
of removal, cancellation of removal, or even adjustment of
status to that of lawful permanent residency. Id.
§§ 1229a(c), 1229b.
Immigration Reform and Control Act.
as originally enacted contained no specific prohibition
regarding the employment of aliens which was, as noted by the
Supreme Court, at most a "peripheral concern."
De Canas, 424 U.S. at 360, 96 S.Ct. at 939. That
changed, however, with the enactment of the Immigration
Reform and Control Act (IRCA) in 1986. Arizona, 567
U.S. at ___, 132 S.Ct. at 2504; see 8 U.S.C.
§§ 1324a-1324b. The IRCA established "a
comprehensive framework for 'combating the employment of
illegal aliens.' " Arizona, 567 U.S. at
___, 132 S.Ct. at 2504 (quoting Hoffman Plastic
Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct.
1275, 1282 (2002)). Under the IRCA, Congress declared it
unlawful to knowingly hire or continue to employ an
unauthorized alien without complying with the work
authorization verification system created by the statute. 8
U.S.C. § 1324a(a)(1)-(2).
order to verify work authorization, the employer must attest
under penalty of perjury that an employee is not an
unauthorized alien by physically examining documents such as
a passport, permanent resident card, driver's license, or
other comparable document, and confirm that those documents
reasonably appear to be genuine. Id. §
1324a(b)(1)(A)-(D). On the form known as the I-9, employees
must also make an attestation of their authorized work
status. Id. § 1324a(b)(2).
respect to the I-9, Congress has provided that "any
information contained in or appended to such form, may not be
used for purposes other than for enforcement of" the INA
and enumerated federal laws regarding false statements,
identification-document fraud, fraud in the federal
employment verification system, and perjury. Id.
§ 1324a(b)(5). As noted by the United States Supreme
Court in Arizona, "Congress has made clear . .
. that any information employees submit to indicate their
work status 'may not be used' for purposes other than
prosecution under specified federal criminal
statutes." Arizona, 567 U.S. at ___, 132
S.Ct. at 2504 (emphasis added) (quoting 8 U.S.C. §
employment authorization verification requirements are
enforced "through criminal penalties and an escalating
series of civil penalties tied to the number of times an
employer has violated the provisions." Id.;
see 8 U.S.C. § 1324a(e)-(f). Congress did not
authorize criminal penalties for aliens seeking or engaging
in unauthorized employment.
authorized imposition of a range of penalties on aliens who
commit employment-authorization-related fraud in the IRCA.
Congress authorized federal criminal penalties against a
person who knowingly uses a document not lawfully issued to
the person, a false document, or a false attestation
"for the purpose of satisfying a requirement" of
the federal employment verification system. 18 U.S.C. §
1546(b). Violators of this criminal provision may be
sentenced for up to five years in prison. Id.
Congress also authorized federal criminal penalties against a
person who uses or possesses an immigration document,
including one that demonstrates federal work authorization,
"knowing it to be forged, counterfeited, altered, or
falsely made, or to have been procured . . . by fraud or
unlawfully obtained." Id. § 1546(a).
Persons convicted under this statute, in most cases, may be
imprisoned for up to ten years. Id. In addition to
the criminal penalties, Congress authorized civil penalties
for document fraud involving immigration requirements,
include the work authorization requirement. 8 U.S.C. §
Congress authorized immigration penalties for persons
involved in document fraud. For example, Congress authorized
removal of persons convicted of federal criminal document
fraud. Id. § 1227(a)(3)(B)-(C); id.
§ 1324c; 18 U.S.C. § 1546. Further, federal law may
preclude aliens from becoming a lawful permanent resident if
the alien was employed while he was an "unauthorized
alien." 8 U.S.C. § 1255(c)(2).
Illegal Immigration Reform and Immigrant Responsibility
1996, Congress amended the INA by enacting the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (codified as
amended in various sections of 8 U.S.C.). The IIRIRA called
for improvements in the employer verification system and
required that the Attorney General and later the Director of
Homeland Security to develop pilot programs designed to
improve employment eligibility confirmation process. See
Lozano, 620 F.3d at 200. Ultimately, only one of the
pilot programs, E-Verify, was reauthorized and expanded to
all fifty states. Id. The use of E-Verify rather
than the ordinary I-9 process remains voluntary, with a few
IIRIRA authorized the Department of Homeland Security to
enter into agreements with state and local law enforcement
agencies to enforce federal immigration law. 8 U.S.C. §
1357(g). Under this provision, state and local governments
may assist federal enforcement if (1) there is a written
agreement, (2) local cooperating authorities receive
appropriate training, and (3) local authorities operate under
the supervision of federal immigration officials.
Federal penalties for immigration document fraud.
various federal statutes establish a wide range of penalties
for document fraud related to immigration. Document fraud in
immigration matters is prohibited and subject to an
administrative enforcement regime. Id. § 1324c.
Criminal penalties for fraud and misuse of visas, permits,
and other documents are provided in 18 U.S.C. § 1546. In
addition, the Identity Theft Penalty Enhancement Act imposes
more severe consequences on those who use social security
numbers, credit card accounts, or other information in
connection with a felony, including violation of immigration
law. 18 U.S.C. § 1028A. However, Congress exempted false
use of social security numbers for work in certain situations
from claims of fraud under the Social Security Act. 42 U.S.C.
Discretion in enforcement of immigration laws.
federal immigration laws, discretion is vested in federal
officials in two ways. Federal immigration law is replete
with statutory provisions explicitly vesting discretion in
the executive branch. See, e.g., Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
483-84, 119 S.Ct. 936, 943 (1999) (stating in "the
initiation or prosecution of various stages in the
deportation process . . . [a]t each stage the Executive has
discretion to abandon the endeavor").
has also delegated to the executive branch the determination
of when a noncitizen may work. 8 U.S.C. § 1324a(h)(3)
(removing from definition of "unauthorized alien"
those who the Attorney General authorized to be employed even
when they are not lawfully admitted for permanent residence).
The implementing regulations provide that an alien without
lawful status may still be granted work authorization when
the administrative convenience gives cases lower priority and
an alien establishes economic necessity. 8 C.F.R. §
the United States Supreme Court has "recognized on
several occasions over many years that an agency's
decision not to prosecute or enforce, whether through civil
or criminal process, is a decision generally committed to an
agency's absolute discretion." Heckler v.
Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655 (1985).
In exercising discretion, the United States Supreme Court has
recognized that the executive engages in the "balancing
of a number of factors which are peculiarly within its
expertise." Id. As a result, the cases
generally recognize that immigration laws vest substantial
discretion in the executive branch with respect to
enforcement. See Ariz. Dream Act Coal. v.
Brewer, 855 F.3d 957, 967 (9th Cir. 2017), petition for
cert. filed, 85 U.S.L.W. 3471, (U.S. Mar. 29, 2017) (No.
Implementation of Supremacy Clause Through Principles of
the Supremacy Clause of the United States Constitution,
"the Laws of the United States . . . shall be the
supreme Law of the Land . . . any Thing in the . . . Laws of
any State to the Contrary notwithstanding." U.S. Const.
art. VI, cl. 2. Since the days of John Marshall, the
Supremacy Clause has been interpreted to mean that even if a
state statute is enacted in the execution of acknowledged
state powers, state laws that "interfere with, or are
contrary to the laws of Congress" must yield to federal
law. Gibbons v. Ogden, 22 U.S. 1, 211 (1824). The
United States Supreme Court has implemented the Supremacy
Clause through the development of its preemption doctrine.
Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta,
458 U.S. 141, 152, 102 S.Ct. 3014, 3022 (1982).
contours of the doctrine of preemption, if sometimes
difficult to apply, are well established. The United States
Supreme Court has developed two broad categories of
preemption of state law: express and implied. Id. at
152-53, 102 S.Ct. at 3022. Express preemption occurs when the
federal statutory text clearly provides that congressional
authority is exclusive. Jones v. Rath Packing Co.,
430 U.S. 519, 525, 97 S.Ct. 1305, 1309 (1977). When express
preemption is implicated, close examination of statutory
language is ordinarily required to implement congressional
intent. CSX Transp., Inc. v. Easterwood, 507 U.S.
658, 664, 113 S.Ct. 1732, 1737 (1993).
addition, the Supreme Court has recognized two types of
implied preemption-field preemption and conflict
preemption-which arise even when there is no express
provision in the federal statute preempting local law.
Oneok, Inc. v. Learjet, Inc., 575 U.S. ___, ___, 135
S.Ct. 1591, 1595 (2015). Field preemption arises when
Congress has enacted a comprehensive scheme. Pac. Gas
& Elec. Co. v. State Energy Res. Conservation & Dev.
Comm'n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1722
(1983). In these cases, congressional intent to preempt can
be inferred from a framework of regulation "so pervasive
. . . that Congress left no room for the States to supplement
it" or where there is a "federal interest . . . so
dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject." Rice
v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct.
1146, 1152 (1947).
preemption occurs when a state law conflicts with a federal
provision. Wis. Pub. Intervenor v. Mortier, 501 U.S.
597, 605, 111 S.Ct. 2476, 2482 (1991). There are two
variations of conflict preemption. Conflict preemption occurs
when "compliance with both federal and state regulation
is a physical impossibility." Fla. Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83
S.Ct. 1210, 1217 (1963). Conflict preemption also is imminent
whenever two separate remedies are brought to bear on the
same activity. Wis. Dep't of Indus., Labor &
Human Relations v. Gould Inc., 475 U.S. 282, 286, 106
S.Ct. 1057, 1061 (1986).
preemption also occurs when a state law is an obstacle to the
accomplishment of a federal purpose. Hines, 312 U.S.
at 66-67, 61 S.Ct. at 404. In this regard, the United States
Supreme Court has said, "What is a sufficient obstacle
is a matter of judgment, to be informed by examining the
federal statute as a whole and identifying its purpose and
intended effects." Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 2294 (2000).
Application of Preemption Principles to Immigration
Overview of United States Supreme Court preemption
precedent in immigration cases.
Hines, the United States Supreme Court considered
the validity of a Pennsylvania alien registration statute.
312 U.S. at 59, 61 S.Ct. at 400. A year earlier, Congress had
enacted a Federal Alien Registration Act. Id. at 60,
61 S.Ct. at 400. The Hines Court noted that
"the regulation of aliens is so intimately blended and
intertwined with responsibilities of the national government
that where it acts, and the state also acts on the same
subject, 'the act of [C]ongress . . . is supreme.'
" Id. at 66, 61 S.Ct. at 403-04 (quoting
Gibbons, 22 U.S. at 211). The Hines court
canvassed the various approaches to preemption, noting that
none of the formulations or expressions "provides an
infallible constitutional test or an exclusive constitutional
yardstick." Id. at 67, 61 S.Ct. at 404. And
while the federal law did not have an express preemption
provision, the Hines Court concluded that the
Pennsylvania law "stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress." Id.
recent immigration case dealing with federal preemption is
De Canas, 424 U.S. 351, 96 S.Ct. 933. In De
Canas, the Supreme Court considered whether federal law
prohibited California from enacting a statute which forbade
an employer from knowingly employing an alien who was not
entitled to lawful residence in the United States if such
employment would have adverse effect on lawful resident
workers. Id. at 352-53, 96 S.Ct. at 935. A
California appellate court held that the statute was
unconstitutional, noting that "in the area of
immigration and naturalization, congressional power is
exclusive." De Canas v. Bica, 115 Cal.Rptr.
444, 446 (Ct. App. 1974). The California court further held
that state regulatory power was foreclosed when Congress
"as an incident of national sovereignty" enacted
the INA as a comprehensive scheme governing all aspects of
immigration and naturalization, including the employment of
aliens and specifically declined to adopt sanctions on
De Canas Court held that the California statute was
not preempted by the INA. 424 U.S. at 365, 96 S.Ct. at 941.
The Court concluded preemption could not be required because
"the nature of the regulated subject matter permits no
other conclusion" nor because "Congress has
unmistakably so ordained." Id. at 356, 96 S.Ct.
at 937 (quoting Fla. Lime, 424 U.S. at 142, 83 S.Ct.
at 1217). The Court was unwilling to presume that in enacting
the INA, Congress intended to oust state authority to
regulate the employment of immigrants in a manner consistent
with federal law. Id. at 357, 96 S.Ct. at 937. The
Court declined to consider whether the California statute was
"an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress" because the
issue was not addressed below. Id. at 363, 96 S.Ct.
at 940 (quoting Hines, 312 U.S. at 67, 61 S.Ct. at
404). In light of the vibrancy of obstacle preemption in
immigration law, De Canas thus was a limited
precedent from the outset.
Hoffman Plastic, the United States Supreme Court
considered whether an unauthorized immigrant could receive
back pay when the individual was unlawfully terminated in
retaliation for participating in collective bargaining. 535
U.S. at 140, 122 S.Ct. at 1278. In a battle between federal
agencies, the Supreme Court held that a National Labor
Relations Board remedy for an illegal alien would
"unduly trench" upon the IRCA. Id. at 151,
122 S.Ct. at 1284. Although not a preemption case,
Hoffman Plastic declared that "combating the
employment of illegal aliens . . . [is] central to '[t]he
policy of immigration law.' " Id. at 140,
122 S.Ct. at 1278 (quoting INS v. Nat'l Ctr. for
Immigrants' Rights, Inc., 502 U.S. 183, 194 n.8, 112
S.Ct. 551, 558 n.8 (1991)).
most recent and most important United States Supreme Court
case involving preemption in the context of immigration and
employment is Chamber of Commerce, 563 U.S. 582, 131
S.Ct. 1968. In Chamber of Commerce, the Court
considered a challenge to an Arizona law which allowed for
the suspension and revocation of business licenses for
employing illegal aliens and required all employers to verify
the employment status of all employees using an
internet-based system, E-Verify. Id. at 587, 131
S.Ct. at 1973. Unlike De Canas, which involved a
preemption claim under the INA, the Chamber of
Commerce case involved preemption under the IRCA.
Id. at 588-89, 131 S.Ct. at 1974. The Chamber of
Commerce Court ruled, however, that the Arizona
regulation was within a "savings clause" of the
IRCA, which provided that federal immigration law preempts
"any State or local law imposing civil or criminal
sanctions (other than through licensing and similar laws)
upon those who employ . . . unauthorized aliens."
Id. at 590, 611, 131 S.Ct. at 1975, 1987 (quoting 8
U.S.C. § 1324a(h)(2)).
last case is Arizona, 567 U.S. 387, 132 S.Ct. 2492.
In Arizona, the United States challenged four
provisions of an Arizona statute dubbed the Support Our Law
Enforcement and Safe Neighbor's Act. Id. at ___,
132 S.Ct. at 2497. Two of the challenged provisions created
new criminal offenses. Id. One relevant provision
made failure to comply with alien registration requirements a
state misdemeanor. Id. Another provision made it a
misdemeanor for an unauthorized alien to seek or engage in
work in the state. Id. at ___, 132 S.Ct. at 2497-98.
Two other provisions gave arrest authority and investigative
duties with respect to certain aliens to state and local law
enforcement. Id. at ___, 132 S.Ct. at 2498.
Kennedy delivered the opinion of the Court. Id. at
___, 132 S.Ct. at 2497. Justice Kennedy began with a review
of the broad scope of federal immigration policy.
Id. at ___, 132 S.Ct. at 2498-99. Noting the impact
of immigration policy on international relations, Justice
Kennedy stressed that the federal governance of immigration
status is "extensive and complex." Id. at
___, 132 S.Ct. at 2499. After canvassing the broad sweep of
immigration provisions, Justice Kennedy emphasized that
"[a] principal feature of the removal system is the
broad discretion exercised by immigration officials."
Id. Justice Kennedy explained,
Discretion in the enforcement of immigration law embraces
immediate human concerns. Unauthorized workers trying to
support their families, for example, likely pose less danger
than alien smugglers or aliens who commit a serious crime.
The equities of an individual case may turn on many factors,
including whether the alien has children born in the United
States, long ties to the community, or a record of
distinguished military service.
Kennedy recognized, however, that states bear "many of
the consequences of unlawful immigration." Id.
at ___, 132 S.Ct. at 2500. Justice Kennedy cited statistics
indicating that hundreds of thousands of deportable aliens
are captured in Arizona each year. Id. Further,
Justice Kennedy acknowledged studies reporting ...