your arguments st this morning in case seventeen thousand eight hundred and thirty four kansas versus garcia general schmidt mr chief justice and may please the court in a typical in a recent year more than fifteen million americans became victims of identity theft one rd of those had their personal information misused in an employment or tax related fraud setting many of those victims were left to untangle reputations eligibility and other finances that is why kansas like every other state makes identity theft a crime our laws apply in all settings to all people citizen and alien alike respondents were convicted because they stole other people's personal information with intent to defraud but in respondent's view these state criminal laws that govern everybody else do not apply to them they argue that congress has in effect granted them special immunity because of their intent was to entail obtain employment that congress has forbidden this court never has so held and should not now the conflict fatal to the arizona employment statute is not present here because kansas prohibits the theft of personal information by anybody not work by an authorized aliens and this court has identified no preempted field relevant here section one thousand three hundred and twenty four a b five means what it says and no more the i nine verification system is available only for specified federal uses the five use limitation which is quite different from typical preemption provisions is one of several safeguards congress adopted in one thousand nine hundred and six to limit both governments and employers use of the v novel i nine system but traditional state criminal law still reaches misconduct elsewhere in the employment context of proven without use of the i nine system for example states certainly still may prosecute a felon who uses a stolen identit defeat a background check as a condition of employment at a childcare center even if he also used the same stolen identity on his former i nine so too with the tax withholding forms used here but isn't it telling and it was only when the plastic if that that couldn't be done if the and nine chives are still leaving i think these cases are here justice ginsburg because they do of course present the issue of the intersection between earth and generally applicable state law these cases all straddled in their timelines this court's decision in arizona and i think that explains why the state originally attempted to use the i nine then understood this court's holding in arizona and withdrew from use of the i nine i would point out your honor that all three cases arose were discovered the fraud was discovered in a context outside the employment side in this is not what was happening in subsequent cases in arizona mr garcia's fraud was discovered st in a record check at a traffic stop mr morales from a separate investigation related to workers compensation and mr roach or a large from a separate investigation of a different criminal you don't got an apartment do you agree that the result would be different if the information was harvested from the i nine s in other words if state officials went to employers so let me see your i nine and that is used to gather information that's used in the  kansas prosecutions i think it likely would your honor that is not what happened here and not supported on these records and i recognize that as a more difficult case we can see that the state may not use the i nine form whether that extends to a use investigation i think is is perhaps a somewhat different question not presented here i recognize it's difficult and we don't claim that ground but i don't want to concede it more generally but the package that we submitted to the employer is all in one package the i nine created something new and different it created this i nine system which was a novelty at the time with the force of federal law congress was ordering millions of private employers around the country to gather up personal information of their employees or potential employees and to hold that information so congress was understandably concerned about how employers and others might use that information that's why they put the safeguards in the distinction we believe that's been drawn is between the i nine system itself which congress created and placed off limits and the broader employment hiring contacts which states have traditionally been able to reach and we believe still can reach and so in the question that your honor has posed the fact that documents might be submitted at the same time all for a purpose obtaining a job does not transform tax withholding forms or any other hiring documents like a resume a job application a background check form into part of the i nine system now i system is what's been my own package your argument a little bit i your position i see you seem to be conceding that you can't use the prosecutor for any false statements on the i ninety four correct your honor as i've said to the chief justice when we aren't doing that we concede we don't intend to do that i think maybe for our order purpose that's so case what meaning do you give to the part of the preemption this language that says you can't use the form in any way  the precise language use i think in terms of the language of the five year old exactly were congress so if you can't use it in any way why can you use the information contained therein for employment verification meaning i certainly do understand and independent verification like a criminal check criminal law  check but you're still using it for employment verification correct well i think not your honor and perhaps it's a linguistic distinction but i want to be clear on what are that's why i'm having a problem which is i'm not quite sure how to how we can see that one without conceding the nd we think that employment verification is is best used to describe the i nine system that congress created in the irc and that sub aircraft be it work of those st three paragraphs congress set up the system of at a station and the related obligations that is what verifies employment work authorization for purposes of federal immigration law there are other things in the employment context that may be other forms for me to get same time well your honor i think i understand the point and if i understand it correctly it is that information that is false stolen information from somebody else that is contemporaneously submitted to an employer if it's not the same false information and i nine and other employment related documents it would necessarily reveal the fraud on the i ninety five understand your honour's question that may well be but that doesn't change the that what congress has fenced off here is the i nine verification system not the tax withholding system not other aspects of the employment relationship and if congress had wanted to more broadly exclude states from that role they knew how to do it but the tape things sorry the two things as justice ginsburg points out always go together the i nine form and the tax forms and virtually all employment you can be asked for social security number on both forms and so the states would in essence be able to go after on authorized employment in a pretty substantial way not withstanding what congress said about giving the federal government the role with employment verification so how do you answer that concern and in particular i think arizona's language on unauthorized employment and so to justice kavanagh ride together background going to be what a lot of these cases are about i would think if you prevail here then i think justice kavanagh that the best answer to that is what congress did not do and if one looks for example at twenty six nonsensical to think that congress on the one hand would have created a specific crime for w for fraud and yet precluded its application in situations in which the w four is most commonly submitted together with the i nine it must be that congress did not consider the umbrella of immunity as to the i nine to extend so far as to get the death before and of course congress certainly didn't consider the immunity it was granting with respect to the i nine to the extent it did to extend to the state name the u s as a victim correct this fraud is on the government because w floors are submitted to the government for tax purposes correct i think you don't have to our as a state i am by calling this a fraud under state law because the victim has to be the us well i i'm not sure the victim does have to be the united states you are i think the victims here are the individuals whose identities were stolen here on the key for i didn't see in the trial record where you argued that clearly to the three sets of juries you're out of there was garcia was the only case that went to a jury the other two were bench trials and the k four was present i believe in two of the cases in mr garcia's case and in mr morality case it was at least in the charging affidavit so i'd have to look at the record more carefully to see if it was if you carry through with respect to the field issue your honor this court has never identified a preemptive field in the employment context that would be applicable here and to the extent that arizona well i think that arizona as we read it at least your honor with respect to the employment provision the five c provision in arizona that was a conflict preemption analysis where justice kennedy writing for the court suggested that because of the method the state was using the criminal law congress in that application in particular had declined to use the criminal law to criminalize work by an authorized aliens here that analysis isn't present at all congress has criminalized fraud as well as identity theft and so i think we're back in the traditional world where we have separate sovereigns who may go after the same conduct unless it's precluded and here it is not with respect to the field preemption issue as well i think it would be difficult for this court to recognize a preemptive feel that particularly in light of the provision of the holding in whiting that was a conflict analysis holding but related to the he verify system it's difficult to imagine how there is a preempted field states may not enter even as to employment verification narrowly and yet at the same time it is permissible for the state of arizona to order the use of the if i system to verify employment under federal law i could go back to justice cavanagh's question because you recognize that you can't use the i nine student prosecute and in this way but you also acknowledge that the forwards are going to be present in every case in nine in fact have i think justice kagan back to my earlier point about what congress was doing in our view in one thousand nine hundred and eighty six remember prior to nine hundred and eighty six there was no federally mandated very disparate requirement for collection of personal information throughout the country by employers and congress was very concerned about what now seems commonplace but at the time was novel they were concerned about how that information might be misused and we think that explains the congress's choice of the language in b five they didn't use traditional preemption language as they did in age two as to employers if they wanted to exclude states from this area entirely they could have done it they did it in the statute as to employers and h two but they use different language and the five a more passive voice they didn't talk about states specifically at all or government specifically at all they simply said that neither the form or information on it nor anything can the attachments to it appended to it may be used and i think they were principally worried about how employers might misuse it of course i'm not suggesting they were inviting us i'm just suggesting that was their focus and why they wrote the provision the way they did but let me ask the same question maybe from a different perspective which is our decision in arizona because our decision in arizona said that states could in fact not prosecute unauthorized employee is for seeking employment and but this gives you a tool to do just that in every single case so essentially it eviscerates everything that we said in arizona doesn't it well your honor as i suggested earlier the way we read the reasoning in arizona is not applicable here so we think it is distinguished and separate if this court were to in our view at least extend arizona to cover this circumstance we think that would be a very different type of case than we're talking about extending arizona but i'm suggesting that if you are right on this case we might as well not have issue d arizona no i think not your honor because again what the state is focused on here and i don't think this is seriously disputed mildly perhaps in the record is indicating its traditional interest in prosecuting fraud the fact that incidentally are generally applicable laws intersect with the employment context or perhaps the immigration context does not mean that congress has commanded nor should we carve out special application or lack of application of our general laws to persons because of their work authorization status in other words arizona is a very different circumstance we are targeting folks because of their status we are in forcing our employment  our identity theft laws and we don't want to give special exception to that to people because of their status thank you counsel mr michel mr chief justice and may it please the court respondents stole the identity information of others and passed it off as their own on tax withholding forms there's no dispute that states could traditionally prosecute frauds and forgeries of that kind the question is whether congress with true that authority when it passed in one thousand nine hundred and six congress did not urge to is an immigration statute it's set up a new system that's the employment verification system precisely to verify whether employees have work authorization as a matter of federal immigration law now put express limits on the use of the form that employees submit to document their work authorization and as the court held in arizona or can also put implied limits on what court one what states can do to regulate work authorization but nothing in earth diminish the state's longstanding power to prosecute crimes like this one non immigration offenses are non immigration forms submitted for non immigration it would be preemption no justice ginsburg i think you're referring to the brief the government filed in the th circuit in the plant to arizona case and that if we took two positions that i think are relevant here st we took a position that's exactly the one we take here with respect to be five which is that that provision doesn't bar prosecution using forms other than nine that's the express preemption argument as to imply preemption the government said in that brief that fraud on the work authorization process would be apply  preempted but the government at page twenty three dollars of that brief expressively said that fraud outside the work authorization process for example was tax withholding forms that we have here would not be preempted any more than state laws that regulate drugs or  the s form were other information that they give the true fruit to in federal statute and it is a crime to do that and fraudulently give it to an employer for the purpose of painting it jo authorization process which i think is what your hypothetical was although i'm not sure i've tried every does is it says that if you take information from the else is it s nine as it would the i know i i know or these other papers that are referred to and you mr alien go and give it to any employer for the purpose of pretending that you're somebody you aren't so you'll get a job would that be preempted i do think that would this case as it was put in the arguments by the prosecutors and by the complaints and so forth what he did was he put this george was using identifying information or documents which are the same information is on the i nine using it to defraud another person which they did i guess in order to receive a benefit there is a difference between what i just said and what i'd said when i was asked you the question i'm not sure what it is maybe i can help you out and i think it's the distinction and this is a critical one between work authorization which is a defined which is a term of art under immigration law inertia and general requirements for obtaining a job such as submitting a tax withholding form submitting a background check those are two quite different things is an immigrant as i said at the outset an immigration statute that deals with work authorization to work in the united states there are other requirements of law for example twenty six dollars u s c three thousand four hundred and two dollars requires a tax withholding form but that has nothing to do with work authorization regardless of your work authorization status you still have to submit tax withholding form and i think one way to illustrate the distinction is that a u s citizen who has undoubted work authorization could submit the same material submitted here a falso secure a stolen social security number on the i nine and the tax withholding form for example to conceal a criminal conviction or sex offender status all that's true but the allegation in the criminal cases here to get a job it said nothing about they submitted to get a job because it showed we paid taxes and i suspect they submitted that to get the job because the employer would think they were a different person so here i think we're my room so i think at the at a minimum they submitted it for two different reasons one perhaps to demonstrate work authorization which it couldn't be clearer that arizona is not prosecuting here i mean excuse me that kansas is not time expires about the the meaning of b of language in the five any information contained in the i am nine what does that mean i think that simply means that simply covers everything that's on the i nine form and that's an effort by congress to cover broadly everything that's on the form in case there were some creative prosecutor who wanted to say well we've extract it piece of the a piece of the i nine and therefore we're not using the i know i'm in violation of the five and even if this court might not find that a very persuasive argument i think it makes sense that congress wanted to be doubly sure that they were covering the full that i still don't understand what you make of it and how it fits the language of the statute information means generally a fact all right so the facts contained in i nine would be the name the social security number the address all the facts that the apple can for employment puts on the on and on now i agree with that they can't mean that word that produces ridiculous results or can't mean that those facts can never be used by anybody for any purpose but i don't quite see how i don't really understand your you mean that you interpret this to mean they can't use the i whole or they can't use the i nine in part isn't that that's what it comes down to how does that fit the language of the stand oh i think if you look at the whole phrase justice alito which is use the i nine or any information contained in the i nine i think it simply means that they can't use either of the i nine in whole or the information that appears on the on which you know if you look at the i nine which is in in our appendix it has the social security number and other information that you could get the worst of it which soon is for purposes only related to the fraud sections of the the federal code so it does seem to me to be limiting the use for fraud related to employment verification seeking a job i thought that last point i think is the critical one work authorization under immigration law is not the same thing as seeking a job in general and to go back to the point i was making to justice briar if you allow by the state to prosecute roughly the very thing that the federal statute reserves to the federal camp and so the question is is it the very thing and then my my questions is prying to figure out why it isn't the very thing that certainly sounds like a very i agree that the term sounds similar but i do think it would be a mistake to be confused by that because work authorization is very different than mistreating and you only put the same sort of question in another way because when you were speaking with justice prior he said that a state law that regulates fraud in the work what there is a sion process would be preempted and i guess the question here is kansas has a generally a pleasurable law but even generally applicable laws can be used to regulate fraud in the work with the recession process and when a statute even though generally likeable is used in that way shouldn't the same results follow may i ask mr justice yes but yes the answer is yes and that i think was manifested in this case by kansas dismissing the i nine because those were the charges that related to work authorization which was the purpose of these other charges that were elated that related to matters and not related to work authorization were not preempted by urco which is after all immigrations statute and therefore were properly choose mr chief justice and may it please the court i'd like to begin with the rule that we ask the court to adopt states may not prosecute individuals for using false information to demonstrate work authorization under federal immigration law to put this slightly differently if to satisfy an element of a state offense the state proves an individual used false information to show federal work authorization  preemption here because kansas prosecutor respondants for using false information to demonstrate federal work authorization kansas chose to prosecute fraud claims one element it had to prove was that respond obtain property kansas had one theory respondents used false information to show employment eligibility and thus they obtained jobs had respondents use truthful information kansas maintains they would not have been hired because of federal immigration law in the intermediate state court respondents argued that the state had insufficient evidence to prove the benefit element adopting the state's argument the court held that kansas satisfied the requirements of state law by proving that respondents wrongfully showed that they were eligible for employment now according to the kansas supreme court quote the state seeks to punish an alien who used the personal identifying information of another to establish the aliens work authorization indeed kansas an initially charged response with fraud on the i nine while it dropped those charges its theory of the prosecution remained exactly the same for purposes of preemption the label a state attaches to its regulation is not relevant what matters is what the state actually regulates so here kansas is prosecuting the use of false information to show work authorization or federal planning for authorization uses a false social security number canet number ever be used to prosecute him for identity theft yes it can your honor our theory of preemption is a limited one in our view what federal law a prosecution for the use of false information with respect to showing that somebody is authorized under the federal immigration laws for employment that is the element that federal law pre amps if a prosecutor i'm sorry just so the social security number is used in the nine process to establish work authorization yes or in the state can use that number so long as it's not being used to show work authorization that's right your hon offense has unrelated to work authorization our theory of preemption does not apply in our voting including to get a job right in other words work authorization and applying to get a job are is that mr michel to listen to different things i think that's an accurate yarn or because the way the state prosecuted here was absolutely tethered to federal work authorization and there are a few different ways that we know this is true st if the court looks to the brief that this i mean or just when i make sure where you're headed we're on the same page so you would say that the social security number even though it's information contained on the nine in the process can be used say to get a driver's license but not to get a case for what i think that's right your honor so if this is tied to federal work authorization that is where preemption occurs and we know that that is the theory of prosecution in these cases are you defining work authorization just so i'm clear on the answer the chief justice question yes you are this is incorporated from federal law so the question is is an element of the offense than individual was showing as a matter of federal law that they were authorized for employment if that is the nature of the fraud then that is something that solely the federal government is authorized to prosecute if it's not that theory our theory of product preemption does not skip those some examples that was my earlier question again this is you mentioned getting a driver's license or getting into a college or getting a credit card let's assume that false information was used for any of those processes our theory of preemption does not apply to any of those all right but let's assume that the question the college pass is simply are you authorized to work in the united states if the element i you authorized as a matter of federal immigration law to work in the united states and somebody commits fraud in answering that question that is what federal law pre amps and so our theory of preemption is a straightforward one that we think is easily applied which is just a question of is this an element that i submitted so that you'll pay will go directly into the bank account is it preempted own now well your honor and again to answer the hypothetical i have to know if the prosecution includes an element of of what the what the fraud is because in that theory your honor it's not clear why the use of a false osa here number would be relevant to there would be a material aspect but but if it is that prosecution could proceed so state states  impose requirements for particular jobs or maybe even for all jobs but let's just stick to particular jobs that go beyond the requirements necessary for obtaining any employment in the united states such  as information for a criminal background check or to prove age that requirement for the job using dangerous machinery does your argument apply to that no your honor if the state has those sorts of requirements that are unrelated to the federal immigration laws and they there is a valid state law that requires information at the time of hiring for those reasons argument does not apply in preemptions of houses and so if the case for serves a purpose of other than policing comply with a federal requirement for obtaining work then that would be sufficient well i think it's in let me be quite clear about this your honor i think if the state had charge this as simply the kansas misdemeanor offense which is making a false statement on a state tax form i think we would have a very different case in that circumstance why does it matter because the distinction your honor is because when the state prosecutes using in the theory is false information to show federal employment authorization and that is an immigration offense that's an immigration offens by the immigration reform control act that's an immigration offense that is regulated by the federal immigration so to me for these distinctions that you're talking about you look to the elements of the state law or you look to the underlying conduct or you look to both how does it work you know i think you look to the elements and then you understand as applied in that context what is the theory that the state is offering to prove the elements of that offense also on the elements of this offense it's just as i understand it using someone besides immigration law your honor if you can see the form could be used for other purposes right your honor if a state but we agree the state form can be used for other purposes besides compliance with the immigration laws right yes i think i agree with you ok all right i think we have to write i mean states allowed in force the tax office right course of course ok so a false statement on that form could be for other purposes and it's not essential to the crime  state could have an identity theft case case based on the same for you i think the question is what their theory of benefit is what is so it's not about the elements it's about the theory of the facts and their intentions while you are there is a an element of the offense the intent to defraud and then the state applying that to the individual circumstance has to show what the intent to defraud in that particular case it was i'm sorry if that if a state passes a law making it a serious felony to use a false from what kansas has done here and how does that fit with your implied preemption theory of enforcement discretion which i thought was tied to the use of the fall social security number your honor what kansas has done here is that is on its face objective we prosecuting immigration offense because it has said repeatedly in the lower courts that necessary to show it's that the intent to deceive element was showing the individuals used false information to show that they were eligible under federal law to hold employment when they were in fact not one for years  it just seems a little bit odd to look to you know particular statements that kansas made in order to determine whether a particular prosecution is preempted so that's why i asked the question that i asked  how as a general matter do you go about determining whether a prosecution is preempted yeah i think it's the same analysis the court used in the case like bachmann for example and bachmann is looking at general state fraud laws and said well this is fraud on the f d a how do we know if this is within the range of things they're preempted and one of the tasks the buckman use i think is directly relevant here is bachmann said state laws in that context were not simply parallel to federal laws but in fact the state offense was derivative of the federal case were that by filing a w for the defendant had an intention to comply with kansas tax law would that be unprecedented in your in your nature of how they're applying the intent to defraud element in that context we certainly don't think that all of qantas's id thought fraud laws are preempted nor all id fraud offenses would read against mr is the idea of it's because of how they're applying the law how do we know how they're applying their law at the outset right we want to make these decisions at the outset can this prosecution go forward and can it not how do we know how they're applying their law in this particular case i think as a practical matter matter your honor what would happen in a case like this is if the state of charge charges somebody with this issue that is around a hiring offense saying that there's identity theft the defendant we're under the rule that we permit or we advance would be entitled to file a motion to dismiss that charge  charge is preempted by federal law and the state would then have an opportunity to say no that is not the theory of prosecution that we advance and pretty soon here is can i ask you to bring your answer to a more practical answer which is how would you think give me a hypothetical or even this why this case differs from the case you think it's not preemptive but is that i mean what do you see in that what are the words of the however this the state appellate court said that this goes directly to employment eligibility and this is exactly how when the respondents challenge saying you've not provided us sufficient evidence to show the benefit element the state was obligated to say here's the evidence that we have shown that satisfies the benefit of element what was the evidence they provided it was exclusively eligibility for employment that's tethered to someone and racial never make that mistake again mr hughes you know every future case they will say the benefit that the defendant is seeking the opportunity to comply with our tax laws and our our revenue laws and and and that will be the end of that so we are we are deciding how many angels are dancing on the head of this pin is that what is that what this case is about i disagree with that for a few reasons your honor st they still have to convince a jury that there is in fact a benefit i'm sure and also more say have to of course they have to but it's not preempted the none of these cases will ever be preempted again after today well a few things about that your honor st there are other ways to comply with the k for without using of somebody else's so security number including for example using an i ten an individual taxpayer identification number so that is a way that but every time an employee uses a false identification number in these cases kansas w use a different set of magical words and that will be the end of this problem but your honor what the distinction is is walkmans us may prosecute a wide range of offenses on its tax system and we certainly don't disagree with that what kansas might not do is have its own individual immigration policy immigration offenses i think i agree with you there are ways that and this can charge the similar sorts of conduct when it relates to the tax system that is not the state adopting its own immigration system and i think this is just just to conclude with a point ron i think to the extent see how you get expressed preemption out of the five and i don't know what the conflict is what is the conflict the conflict is similar sorts of conflicts that the court recognized with respect to section three of what is the conflict the conflict is the exercise of prosecutorial discretion how the federal government uses prosecutorial discretion to establish a consistent federal how do we know that the prove that the federal government has taken the position that this particular case or cases of this particular type should be prosecuted this is not a situation like arizona where a state has criminalized something that is not criminal under federal law it's a case where the same conduct is criminal under federal law and kansas says under kansas law so where's the are that was exactly the case with respect to section three of s b one thousand and seventy dollars where the state had adopted precisely the federal standards in assessing what was the underlying state offense and they still found crime and what is the conflict the federal government doesn't say this is contrary to  our our enforcement priorities the conflict in states having independent immigration policies that differ from how the federal government has established priorities with respect to both which tools to use for enforcement as well as which who would in fact prosecute you conceded that state could pass a law making it a felony to use a false social security number on a state tax form you are and that would not be an immigration offense and that would not be a state having its own individual in that would be voluntary but that would certainly be a way for a state to target people who are non citizens who are on welfare in the country from taining employment by an acting such a law so i guess following up on justice alito is question i'm not sure if that's not a conflict why there is a conflict your honor if there is an underlying targeting that is the intent behind that law i think that that might be susceptible to other challenges not the ones we bring here but related to either constitutional cla or selective enforcement or other kinds of challenges to that that is by no stretch the argument though that we press in this case with the specific default again on just the sweetest was specific reason that that's not a conflict but this case is a conflict is  the federal government establishes a uniform immigration policy with respect to who they're going to prosecute who not and that has immigration consequences but beyond that i think our field preemption argument is an extraordinarily strong one because all of the criteria that existed with respect to section three s b one thousand and seventy dollars are present here there is the exact same sort of comprehensive and systematic system of immigration civil and criminal penalties and only the federal government can exercise many of the forms of discretion that are into those enforcement mechanisms so just to offer one example it is a deportable offense to use false information in order to have fraud on the federal employment verification system however there is a discretionary exception to that if an individual enters the united states as a lawful permanent resident and then is working soley to support his or her own immediate family the federal immigration authorities can waive deportation in those circumstances only the federal government can balance that policy as an immigration matter when the states prosecute the only remedy is the state criminal offense and not the graduated and varying mechanisms of the federal government if the person whose identity is stolen has let's say five dependence and the applicant for employment has no dependents but puts down five days and so less money will be withheld under federal and state law could that who uses false information can be prosecuted for state tax offenses now kansas has made quite clear in their brief i think this is page ten of the reply brief in a footnote that they chose not to pursue tax offenses in this particular case that was a decision that i think was rest on kansas as to whether or not they would pursue this as a tax offense case and they said quite clearly they did not and declined to pursue a prosecution in that fashion now employment eligibility here much of the made from from the government  employment eligibility is separate from work authorization that is not the circumstance here because we know that kansas said so in its briefs below in the petition of the appendix that we why should we worry about the briefs or goes home following up on justice course which is question we have a serious issue that's going to affect how states go forward here and particular statements in the briefs below or should not find that will just use different statements next time while you're on i think the point is i  think there are two points st is what is the role the court should adopt and we've said our rule that we think the courts adopt is that a state offense is preempted if it an element of that is use of false information to show federal employment authorization under the immigration laws on the nd question is the implicit billett of that in the context of this case of course that is something the court could leave for remain and if the court agrees and adopts our rule which would be an appropriate way to do it but i think it's at least telling that what the state has done in this case is brought a prosecution that looks exactly prosecute fraud on the i nine itself i think it would not do much to that statute if states can prosecute the exact same theory the exact same kind of immigration offense simply if they look at the k four or the w four  fine even though that might be the same kind of conduct that would be done on the i know i'm you know i think if somebody were challenging that law it would be an argument it's different than the sort of argument that were advancing for you here on that so they're not challenging the law they would be challenging the application of the law and the use of the law in a particular prosecution much as you're doing here and the question is why would there be a different result well i don't think that would be preempted your honor because it would not be prosecuting an immigration offense i think it  as applied challenge would probably be a challenge would be based on selective prosecution if that were a theory that were available given the facts can't say that what but that would be the way that that law would likely be challenged so in fact the the  here the state is prosecuting this person for using this false information which is only on on or wherever in order to show that he has federal authorization to work and thereby is entitle to a job which is the property which he tried to get through deception is that right yes yes and in a different case they might not use the words in their brief they might not use the words he was trying to get the job by showing he was federally authorized but i suppose that those were the facts so they'd be rather pressed to use different words unless the facts were different is that not so i think i mean if they are trying to get a job by using this to show that they were in the hospital then the defense would say or the prosecution would say they showed they were in last battle and if they tried to get it through showing authorization federal the prosecution would say that wouldn't they have  to i think that's right your honor and that just goes to say that when during the course of the prosecution the prosecutor's going to have to identify what the theory of the fraud is if they're going to have to put that before the jury and if the theory of the fraud is use false information to show compliance with federal work authorization requirements that is preempted and if that is not what the prosecutors argue if they have a different application of the general state so is it up as a defense lawyer in the in the court i mean i don't know if you always say this but prophet to the jury jury they've used the word fraud to obtain a benefit but they have not explained to you how that fraud was used to obtain a benefit they do not have witnesses who see another etc what i'm driving up is this is not an one off case that will never occur again but rather it will occur in every instance where the facts justify that's  faith and if the court identifies this clear rule that we've advanced that prosecution state prosecutions can't turn on the elements of use of false information to show federal work authorization i think we can rely on prosecutors won't bring those charges that have that as a particular element and if there are charges or close to the line then those are things that the trial courts will figure out in the course of motions for acquittal or motions to dismiss or motions and women and and that will be sorted out based on the actual evidence that was put before in the particular case but i do think the nature of this rule is in keeping with exactly what the structure congress created in ark i don't think there's any other way to understand what the twenty four a b five does again and believe kansas is in agreement that they can't prosecute fraud if have a law that says you can't have a job in this state without a case for i think kansas probably i don't think there's a federal preemption problem with that and again so why isn't the this case they're saying they couldn't get this job unless  that's not this case because that is not the state of kansas law under kansas law is actually to the opposite as we noted in a footnote eight of our kansas law does not require the submission of a case for the time of hiring as a matter of fact it generally does occur but kansas state law specifically provides for individuals to be hired without submitting a case for so that simply not the theory of prosecution that was available to kansas in the facts of this case and not what it was that they in fact  so ultimately again we think that this is a narrow case that use of false information to show federal work authorization is the element that is preempted it's a clear rule it's a rule that the trial courts across the states can regularly implement and we think it's the only rule that so long as it's given a different name and that's simply not how preemption works as a court of putatively preemption works to what the facts has been regulating not the label that the state uses how is it expressly preempted under the five that argument mystifies me to be five says nothing about work authorization it says nothing about aliens it says nothing about the use of the information by the state government or by the federal government applies to any use how you can read the argument that you're making in to be five is something that escapes me can you explain that so if you things are on a st i think the five certainly identifies the policy that congress enacted which informs our arguments under field preemption i think that may in part be the best way to look at this but nd with respect to the five itself i don't think there is much dispute that it is a preemption provision but i think that the federal government has agreed that it means you can't prosecute fraud on the i nine form itself the real question is what is the breath of that express preemption provision and what kansas has suggested is that it's either all or nothing that either it has to the language in any information contained in effectively does nothing because it reduces just to what the form is or a partial aspect of the form or if you give any meaning to that language then there is no limitation and everything is fair game that is not how the court should interpret this and that's not how the court interprets preemption statutes more broadly take for example the merits of the spears case where the court was assessing the language in connection but you want us to say you say so especially preempted even though all of the elements practically all of the elements of the rule that you're advocating are not mentioned at all in the five but you want us to read all of those in and then say this is expressed this expressively pre amps that you may have a good argument under some other category of preemption but how it could be expressed how it can be expressed preemption is release is really something this is information that is contained in and they're using it for the same purposes to underlie the five which show direction that establishes the balance between the states in the federal government and in the five whether one thinks that that is expressed i am sure not i think it undeniably identifies the policy judgment of congress that the federal government alone should have the authority you mr chief justice like to try to make three points with respect to justice alito as line of questioning on the b five language b five is certainly of red as a preemption provision most unusual and not least of which is because it is not aimed exclusively at states preemption is a supremacy clause con cept that regulates the relationship between the federal government and states but the five speaks not only that but also to the relationship between the law congress passed and what the federal government may do and most importantly as i was discussing earlier with justice kagan what private employers may do with this information that they were compelled to collect and maintain in a novel manner back in one thousand nine hundred and six and we think that explains your earlier question justice alito with respect to what this information contained in me we think it is an effort by congress to make absolutely clear not just to states and not just of the federal government but to millions of private employers who now must by command of federal law maintain this private information that they may not use the for or information harvested from the form or information attached and submitted for the purpose of satisfy the requirements of the form we don't think expressing preemption gets them their nd with respect to the benefit question which i think goes perhaps to i'm not sure if it goes to conflict or field i'm a little uncertain about that but on the benefit issue i think the what we agree is off limits is the i nine system we are arguing that kansas prosecuted these individuals because they were trying to commit fraud on the  system we arguing that they defrauded folks whose identities were stolen and that we used as evidence the w four and k four tax forms we didn't use the i nine system with respect to the notion that somehow preemption turns not on the intent of congress but on the subjective intent of the offender that turns preemption analysis on its head and hypothetical i think that illustrates that imagine that let's say mr garcia on the facts here were stopped for speeding not because he was headed to a job he already had but because he was headed with completed employment forms applications in the back of his car to apply for the job he still would be guilty of the same state law crimes of identity theft his intent was to obtain the benefit of employment when he never arrived at the employer to apply for the job in the  place that can't be the test that makes the difference here and finally with respect to the notion of what the state is asking for here we're a little unclear on exactly what the older friends on the other side think is preempting as i suggested  earlier if there is one it has to be extremely narrow the i nine system itself that we're not sure a field exists there because of the decision in whiting that states may compel the use of the either if i system which certainly is part of work authorization so this court has never identified a field and should not with respect to this case the conflict we don't see the conflict that was present in arizona as we discussed earlier is not present here this is a fundamentally different case kansas is not trying to act as an immigration force or but to enforce our generally appl theft laws thank you counseled the cases submitted