Arizona Identity Theft Statute Not Facially Preempted by IRCA: Ninth Circuit

Practical Law Legal Update w-002-2298 (Approx. 5 pages)

Arizona Identity Theft Statute Not Facially Preempted by IRCA: Ninth Circuit

by Practical Law Labor & Employment

Background

To attempt to solve problems stemming from illegal immigration and employment-related identity theft, Arizona passed in 2007 and 2008, respectively:

H.B. 2779 (Legal Arizona Workers Act), amending Arizona's aggravated identity theft statute to prohibit using the information of another (real or fictitious) person "with the intent to obtain employment" (Ariz. Rev. Stat. § 13–2009).
H.B. 2745 (Employment of Unauthorized Aliens) expanding Arizona's general identity theft statute to also cover employment-related identity theft (Ariz. Rev. Stat. § 13–2008(A)).

In response to increased prosecutions under the amended laws, Puente Arizona, along with individual unauthorized aliens and Maricopa County taxpayers (Puente) sued Maricopa County officials, Maricopa County, and the State of Arizona, challenging the amended identity theft laws as unconstitutional.

In August 2014, Puente:

Moved for a preliminary injunction solely on its facial preemption claim.
Relying on Arizona v. United States, argued that:
- IRCA established a "comprehensive framework" for regulating the employment of unauthorized aliens; and
- therefore Ariz. Rev. Stat. §§ 13–2009 and 13–2008(A) were facially preempted.
(132 S. Ct. 2492 (2012).)

In January 2015, the district court:

Agreed that the laws were likely unconstitutional on their face.
Granted the requested preliminary injunction on conflict and field preemption grounds.
Enjoined Arizona from enforcing:
- Ariz. Rev. Stat. § 13–2009(A)(3); and
- the portion of Ariz. Rev. Stat. § 13–2008(A) that addresses actions committed 'with the intent to obtain or continue employment.'
Denied Maricopa County's Rule 12(b)(6) motion to dismiss under Monell v. Department of Social Services because control is just one factor in the Monell policymaker analysis (436 U.S. 658 (1978)).

Arizona appealed to the Ninth Circuit, challenging the district court's preliminary injunction. The district court has yet to consider the merits of Puente's as-applied preemption challenge.

Outcome

The Ninth Circuit reversed in part, vacated in part, and remanded, holding that:

Ariz. Rev. Stat. §§ 13–2009 and 13–2008(A) were not facially preempted by provisions of IRCA regulating employment of unauthorized aliens.
The court did not have pendent jurisdiction over the issue of whether the county was subject to Monell liability.

The Ninth Circuit first considered the rules that apply to facial challenges, noting that:

In United States v. Salerno, to succeed on a facial challenge the plaintiff must show that "no set of circumstances exists under which the Act would be valid" (481 U.S. 739 (1987)).
In the First Amendment context, the Supreme Court recognizes a type of facial challenge in which a statute will be invalidated as overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep" (United States v. Stevens, 559 U.S. 460 (2010) (quoting Washington v. Glucksberg, 521 U.S. 702 (1997)).
Whether the "substantial number of applications" test applies to facial preemption challenges has not yet been decided by the Supreme Court.
Without more direction, it is appropriate to continue applying Salerno (United States v. Arizona, 132 S.Ct. 2492 (2012); Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 579 n. 3 (9th Cir.2008) (en banc)). Puente must overcome a high bar under Salerno before the court can strike down the identity theft laws on this facial challenge.
The identity theft laws are not facially preempted because they have obvious constitutional applications, for example:
- the scope of this appeal is based solely on Puente's claim that the identity theft laws are facially preempted under the Supremacy Clause. Based on this facial challenge, Puente asked the district court to enjoin enforcement of all applications of the identity theft laws. Without a fully developed record it is inappropriate now to enjoin only certain applications of the identity theft laws; and
- it is significant that the identity theft laws are textually neutral, that is, they can equally be applied to unauthorized aliens, authorized aliens, and US citizens. It is not possible to tell that the identity theft laws undermine federal immigration policy by looking at the text itself. Only when studying certain applications of the laws do immigration conflicts arise.

Practical Implications

Arizona continues to enforce its identity theft laws. Identity theft remains a major issue for immigration enforcement, as employers are tasked during the Form I-9 process with assessing whether documents presented appear to be genuine and related to the person presenting them. Until the district court rules on when the laws are preempted as applied, employers in Arizona may be subjected to raids and investigations as part of the State's enforcement of these laws.

Arizona Identity Theft Statute Not Facially Preempted by IRCA: Ninth Circuit | Practical Law