### IN THE SUPREME COURT OF IOWA

No. 15

– 0671
Filed June 9 , 2017
Amended August 15 , 2017

STATE OF IOWA, Appellee ,

vs. MARTHA ARACELY MARTINEZ, Appellant

.

Appeal from the Iowa District Court for Muscatine County,
Stuart P. Werling, Judge.

Defendant seeks interlocutory review of denial of motion to
dismiss. REVERSED AND REMANDED WITH DIRECTIONS.

Philip B. Mears of Mears Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Alan R. Ostergren, County Attorney, for appellee.

Lori T. Chesser and Sarah E. Crane of Davis Brown Law Firm,
Des Moines, for amici curiae DREAM Iowa, CASA of Sioux County, Immigrant Allies of Marshalltown, Diocese of Davenport Immigration Program, Casa Latina Mary Treglia Community House, Southwest Iowa Latino Resource Center, and Justice for Our Neighbors.2 John A. Hathaway of Kasaby & Nicholls, LLC, Omaha, Neb raska, Bram T.B. Elias, University of Iowa College of Law Clinical Law Programs, Iowa City, and Rita Bettis of ACLU of Iowa, Des Moines, for amicus
curiae ACLU of Iowa.3

APPEL , Justice.
In this case , we are called upon to determine if an undocumented

non citiz en 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 f or Childhood
Arrivals (DACA) 1 program, may be prosecuted by S tate authorities for using false documents to obtain federal employment authorization even though federal law pervasively regul ates employment of undocumented
noncitizens. The answer to this question is no.
I. Factual Background and Proceedings.
A. Facts Surrounding Martha Martinez
. Martha Martinez came to Muscatine with her parents in 1997 when she was eleven years old.
Sh e attended Muscatine public schools and worked for several different

e mployers in Muscatine County. When she was seventeen years old, Martinez applied for and
obtained an Iowa driver ’ s license. She used a birth certif icate in the
name of Diana Casta n e da, a person with a social security number, to
obtain the license. S he renewed the license in 2008. In 2013, Martinez used her fictitious driver’s license and a social security card in the same name to obtain employment at P acker Sanitation, a business loca ted in Muscatine County. The documents
were used to obtain what is referred to as I

- 9 paperwork.

1 Memorandum from Janet Napolitano, Sec’y of U.S. Dep’t of Homeland Sec. to David L. Aguilar, Acting Comm’r, U.S. Customs & Border Prot.; Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs.; and John Morton, Dir., U.S. Immigration & Customs Enf’t (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1

- exercising

prosecutorial

- discretion

- individuals

- who

- came

- to

- us

- as

- children.pdf.4 Also in 2013, Martinez applied for and received temporary lawful immigration status from the Department of Homeland Security pursuant
to the DACA program. B ecause she now had temporary lawful immigration status, she was able to obtain work authorization in her own name from the Department of Homeland Security. Because 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 newl y issued social security card. The Iowa Department of Transportation (IDOT) , apparently using facial recognition software, noted a similarity between her ph otograph 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. According to the notes of the IDOT investigator, a woman appeared at the Iowa City drivers ’ licens e station on May 2, 2003 , with a California
birth certif icate in the name of Diana Casta neda. 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

. On March 6, 2014, a woman appeared at the Iowa City drivers ’ license station and applied for an Iowa driver’s license . The person presented a n 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. The investigator determined that wages were being obtained by
Diana Castaneda at Packer Sanita tion. The investigator contacted5

Packer Sanitation and obtained Diana Castane da’s I

- 9, copies of her Iowa ID, social security card , and payroll history showing she obta ined wages in excess of $1 000. The investigator contacted immigration authorities
and learned that Martinez had a valid employment authorization c ard. The 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 C astaneda 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 securi ty 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.
B. Iowa Criminal Proce e dings
. The State filed two criminal charges against Martinez. Count I alleged the crime of identity theft
under Iowa Code s ection 715A .8 (2013) . This C ode provision states, “ A person commits the of fense of identity theft if the person fraudulently uses or attempt s to f ra udulently use identification information of another
per son, with the intent to obtain credit, property, services, or other
benefit. ” Iowa Code § 715 A .8(2). If the value of the credit, property, or services exceeds one thousand dollars, the person commits a class “D” felony. Id. § 715 A .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 $1 000.6 Count II alleged the crime of forgery under Iowa Code s ection 715A.2(1). This C ode provision declares that a person is guilty of the crime of forgery if , with intent to defrau d or injure anyone, a person “[m] akes, completes, executes, authe nticates, 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. § 715A.2(2)( a )(4).
Martinez 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 , 415

– 16 , 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 in dependent of federal law.
The district court denied the motion to dismiss. A ccording to the court, the charges of identity theft and forgery were “state crimes independent o f Defendant’s immigration statu s.” In prosecuting Martinez, the c ourt stated, th e State was not acting to enforce or attack federal immigration law. Therefore, Martinez’s prosecution was not preempted by federal law. Martinez sought interlocutory review. We granted the application.7

II. Discussion.
A. Overview of Federal Immigration Law Related to
Unauthorized Employment of Illegal Aliens.
1. Introduction. “The Government of the United States has broad, undoubted power over the subject of immigration and the status of
aliens.” Id. at 394 , 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 ) . I t is also based upon the federal government’s inherent power as a sovereign to

con trol 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 perce ptions 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 an d Uruguay for Leave to Join the United
Mexican S tates as Amici Curiae in Supp. of Resp ’ t at 6, Arizona , 567 U.S. 387, 132 S. Ct. 2492 , 2499

– 2500 (2012)

. 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 immigrati on and international
relations.
2. Early regulation and plenary au thority. The United States Supreme Court has observed that the supremacy of national power in the general field of foreign a ff airs

— including immigration, naturalization, and deportation

— is made clear by the United States Constitution. Hines8

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 Busin ess , 9 Harv

. L

. & Pol’y Rev. 529, 5 30

– 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 T ing v. United S tates , 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)

. 3. Overview of Immigration and Nationality Act. Congress e xercised its power over immigration through enactment of the Immigra tion and Nationality Act (INA) which, along with other enactments , provides a

“ comprehensive federal statutory scheme fo r regulation of immigration
and naturalization ” and set s “ 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. Whitin g, 563 U.S. 582, 587,
131 S. Ct. 1968, 197 3 (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

– 1 537. By way of brief summary, the INA provides criteria by which “aliens,” defined as “any person not a citizen or na tional 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.9 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 criteri a 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. Persons 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 admitt ed, r emoved from the
United States.” Id. § 1229a(a)(3). INA removal pro cedures 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. §§ 1229 a (c) , 1229b.
4. Immigration Reform and Control Act. The INA 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 404

– 05 , 132 S. Ct. at 2 504 ; see 8
U.S.C. §§ 1324a

– 1324b

. The IRCA establi shed “a comprehensive
framework for ‘ combat ing the employment of illegal aliens. ’ ” Arizona , 567 U.S. at 404 , 132 S. Ct. at 2504 (quoting Hoffman Plastic Compounds,
Inc. v. NLRB , 535 U.S. 137, 147, 122 S. Ct. 1275, 1282 (2002))

. Under10

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). In 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 rea sonably 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). With 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 purp oses other than prosecution under specified federal criminal statutes .” Arizona , 567 U.S.
at 405 , 132 S. Ct . at 2504 (emphasis added) (quoting 8 U.S.C. § 1324a(b)(5))

. Federal 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 see king or engaging i n unauthorized employment.11 Congress 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 l awfully 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 sentence d 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 fals ely ma de, or to have been procured .

. . by fraud or unlawfully obtained

. ” Id. § 1546(a)

. P ersons 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. § 1324c(a)(1)

– (4) , (d)(3)

. Finally, Congress authorized immigration penalties for persons involved in document fraud. For example, Cong ress authorized removal of persons convicted of federal criminal document fraud. Id. § 1227(a)(3)(B)

– (C); i d. § 1324c; 18 U.S.C. § 1546. Further, federal law may preclude al iens from becoming a lawful pe rmanent resident if the alien was employed while he was an “unauthorized alien.” 8 U.S.C. § 1255(c)(2).
5. Illegal Immigration Reform and Immigrant Responsibility Act. In 1996, Congress amended the INA by enacting the Illegal Immigration
Reform and Immigrant Responsib ility Act of 1996 (IIRIRA) , Pub. L. No.
104

– 208, 110 Stat. 3009 (codified as amended in various sections of 812 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 e xpanded to all fifty states. Id. The use of E

- Verify rather than the ordinary I

- 9 process remains voluntary , with a few exceptions

. Id.
The IIRIRA authorized the Department of Homeland S ecurity to enter into agreements with state and local law enforcement agencies to enforce federal immigra tion law. 8 U.S.C. § 1357 (g)

. Under this provision, state and local governments may assist federal enforcement if ( 1) there is a written a greement, ( 2) local cooperating authorities receive
app ropriate training, and ( 3) local authorities operate under th e supervision of federal immigration officials. Id.
6. Federal p enalties for i mmigration d ocument f raud . The 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 provid ed in 18 U.S.C. § 1546. In addition, the Identity Theft Penalty Enhancement Act impo ses more severe
consequences on those who use social security number s , credit car d accounts, or other information in connection with a felony, including
violati on of immigration law. 18 U.S.C. § 1028A. However, Congress exempted false use of social secur ity number s for work in certain
situations from claims of fraud under the Social Security Act. 42 U.S.C. § 408( e ).13

7. Discretion in e nforcement of i mmigration l aws. Under federal immigration laws, discretion is vested in federal officials in two ways. Federal immigration law is replete with statutory provisions explic itly vesting discretion in the executive b ranch. 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 dis cretion to abandon the endeavor”). Congress has also delegated to the executive b ranch 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 conveni ence gives cases lower priority and an alien establishes economic necessity. 8 C.F.R. § 274a.12( c )(14) (2016)

. Further, t he United States Supreme Court has “recognized on
several occasio ns 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 Su preme Court has recognized
that the e xecutive engages in the “balancing of a number of factors which are peculiarly within its expertis e .” Id. As a result, t he cases generally recognize that immigrat ion laws vest substantial discretion in the executive branch with respect to enforcement. See Ariz. Dream Act Coal.14

v

. Brewer , 855 F.3d 957, 967 ( 9th Cir. 201 7 ) , petition for cert. filed, 85 U.S.L.W. 3471, (U.S. Mar. 29, 2017) (No. 16

– 1180)

. B. Implementation of Supremacy Clause Through Principles of Preemption
. U nder the Supremacy Clause of the Un ited States Constitution, “the L aws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the . . . Laws of any State to the Contrary n otwithstanding.” U.S. Const. a rt. V I, 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 acknowl edged state powers, state laws that “inter fere with, or are c ontrary 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. Sa v. & Loan Ass’n v. de la Cuesta , 458 U.S. 141, 152, 102
S. Ct. 3014, 3022 (1982).
The contours of the doctrine of preemption, if sometimes difficult to apply, are well established. The United States Supreme Court has developed two broad catego ries of preemption of state law : express and impli ed. Id. at 152

– 53, 102 S. Ct. at 3022. Express preemption occurs
when the federal statut ory text clearly provides that c ongressional authority is exclusive. Jones v. Rath Packing Co. , 430 U.S. 519, 525, 97
S. Ct . 1305, 1309 (1977). Whe n express preemption is implicated, close examination of statutory language is or dinarily required to implement

c ongressional intent. CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 664, 113 S. Ct. 1732, 1737 (1993). In addition, the Supreme Court has recognized t wo types of implied preemption

— field preemption and conflict preemption

— which arise even whe n there is no express provision in the federal statute preempting local15

law

. Oneok, Inc. v. Learjet, Inc. , 575 U.S. ___, ___, 135 S. Ct. 1591, 1595 (2015). Field preemption arises whe n 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, c ongressional 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). Conflict preemption occurs when a state law conflicts with a federal provision. Wis. Pub. Intervenor v

. Mortier , 5 01 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 regulati on is a physical impossibility.” Fl a. 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. , 4 7 5 U.S. 282, 286, 106
S. Ct. 10 57, 1061 (1986). Conflict preemption also occurs when a state law is an obstacle to the accomplishment of a federal purpose

. Hines , 312 U

. S . at 66

– 6 7 , 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,
37 3 , 120 S. Ct. 2288, 2294 (2000).16

C. Application of Preemption Principles to Immigration L aw. 1. Overview of United States Supreme Court p reemption p recedent
in i mmigration c ases. In 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
F ederal Alien Registration Act. Id. at 60, 61 S. Ct. at 400 . The Hines
C ourt 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 21 1 ). The Hines C ourt canvassed the various approaches to preemption, noting that none of the formulations or expressions “provides an infallible constitution al test or an exclusive constitution al 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.
A more recent i mmigration 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 wa s not entitled to lawful residence in the United States if such employment would have adverse effe ct 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 an17

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 employer s. Id.
The De Canas C ourt held that the California statute was not preempted by the INA. 424 U.S. at 365, 96 S. Ct. at 941. The C ourt concluded preemption could not be required because “the nature of the regulated subject matter permits no other conclusion ” nor because “Congress ha s unmistakably so ordained.” Id. at 356 , 96 S. Ct. at 937 (quoting Fla

. Lime , 373 U.S. at 142, 83 S. Ct. at 1217)

. The C ourt 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 statu t e was “an obstacle to the accomplishment and execution of the full purposes and ob jectives 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.
In 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
collec tive 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 Pla stic declared that “comba ting the employment of illegal
aliens

. . . [ is ] central t o ‘[ t ] he policy of immigration law. ’ ” Id. at 140, 12218

S. Ct. at 1278 (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc. , 50 2 U.S. 183, 194 n.8, 112 S. Ct. 551, 558 n. 8 (1991)).
The most recent and most important United States Supreme Court

c ase 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

V erify. Id. at 58 7 , 131 S. Ct. at 197 3

. 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 C ourt ruled, however, that the Arizona

r egulation was within a “saving s clause ” of the IRCA , which provided that
fe deral immigration law preempts “any State or local law imposing civil or criminal sanctions (other than th r ough licensing and similar laws) upon
th ose who employ . . . unauthorized aliens.” Id. at 590, 611 , 131 S. Ct. at 1975, 1987 (quoting 8 U.S.C. § 1324a( h )(2) ).
The last case is Arizona , 567 U.S. 387 , 132 S. Ct. 2492. In
Arizona , t he United States challenged four provisions of an Arizona statute dubbed the Support Our Law Enforcement and Safe Neighbor’s
Act. Id. at 393 , 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 req uirements a state misdemeanor. Id. Another provision made it a misdemeanor for an unauthorized alien to
seek o r engage in work in the state. Id. at 393

– 94 , 132 S. Ct. at 2497

– 98

. Two other provisions g ave arrest authority and investigative duties19 with respect to certain aliens to state and local law enforcement. Id. at
394

– 95 , 132 S. Ct. at 24 98. Justice Kennedy del ivered the opinion of the C ourt. Id. at 392 , 132
S. Ct. at 2497. Justice Kennedy began with a review of the broad scope
of federal immigration policy. Id. at 394

– 97 , 132 S. Ct. at 2498

– 99. Noting the impact of immigration policy on international relations, Justice Kennedy stressed that the federal governance of immigr ation status is “extensive and complex.” Id. at 395 , 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 immigra tion officials.” Id. Justice Kennedy explained, Discretion in the enforcement of immigration law embrace s immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or alien s w ho 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.
Id. Justice Kennedy re cognized, however, that states bear “ many of the consequences of unlawful immigration.” Id. at 397 , 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 that aliens are responsible for a disproportionate share of serious crime. Id.
After surveying traditional categories of federal preemption, Justice Kennedy proceeded to evaluate each of the challe nged provisions of
Arizona law. Id. at 397

– 400 , 132 S. Ct. at 2500

– 01

. The first provision considered provided a state criminal penalty for failure to complete or20 carry an alien registration document in violation of federal law. Id. at
399

– 400 , 132 S. C t. at 2501. Justice Kennedy wrote that although the
statute was not identical to that considered in Hines , federal immigration
law provides “ a full set of standards governing alien registration, including t he punishment for noncompliance. It was d esigned as a ‘harmonious whole.’ ” Id. at 401 , 132 S. Ct. at 2502 (quoting Hines , 312
U.S. at 72, 61 S. Ct. at 407). According to Justice Kennedy, field preemption foreclo sed state regulation even if the state regulation is parallel to federal standards. Id

. Justice Kennedy emphasized permitting Arizona to impose its own penalties for the federal offenses would conflict with the careful framework Congress adopted. Id. If the provision of state la w w ere enforced, Arizona would “h ave the power to bring crimina l c harges against individuals for violating a federal law even in circums tances where federal officials in charge of the comprehensive scheme determine that pro secution would frustrate federal policies. ” Id. at 402 , 132 S. Ct.
at 250 3

. Further, Justice Kennedy noted that the penalties for violation
of the Arizona law rule d out probation as a possible sentence and
eliminate d the possibility of a pardon, thus conflicting with the plan that Congress put in place. Id. Justice Kennedy next turned to the pro vision of Arizona law which made it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” Id

. (quoting Ariz. Rev . Stat. Ann. § 13

– 2928(c) (West Supp. 2011))

. This Arizona statutory provision had no counterpart in federal law. Id. The United States claimed the provision ups et “the balance struck by the [IRCA] and must be21 preempted as an obstacle to the federal plan of regulation and control. ”
Id. Justice Kennedy recognized that in De Canas , the C ourt had held the federal government had expressed no more than “a peripheral
concern with [ the ] employment o f illegal entrants.” Id

. (alteration in original) (quoting De Canas , 424 U.S. at 360, 96 S. Ct. at 939) . But Justice Kennedy noted that in light of the enactment of the IRCA,

“ [ c ] urrent federal law is substantially different from the regime that prevailed when De Canas was decided.” Id. at 404 , 132 S. Ct. at 2504. Justice Kennedy noted that IRCA now created “a comprehensive framework” for “combating the employment of illegal aliens.” Id. (quoting Hoffman Plastic , 535 U.S. at 147, 122 S. Ct. at 1282). In analyzing the comprehensive framework of IRCA , Justice Kennedy stressed that it did not impose criminal sanctions on the employee w hen aliens sought or engage d in unauthorized work. Id.
While Justice Kenne dy recognized federal law made it a crime for
unauthorized workers to obtain employment through fraudulent means, Congress made it clear that any information employees submitted to indicate their work status could not be used for purposes other than “prosecution under specified federal criminal statutes for fraud, perjury,
and related conduct

. ” Id. ; s ee 8 U.S.C. § 1324a(b ) (5), (d)(2)(F)

– (G). Justice Kennedy recognized the express exemption provision of
IRCA was silent about whether additional penalties could be imposed against employees seeking to engage in unauthorized work

. Id. But Justice Kennedy emphasized that “the existence of an ‘ express
pre emption provisio [ n ] does not bar the o rdinary working of conflict
pre emption principles ’ or impose a ‘special burden’ that would make it more difficult to establish the preemption of laws falling outside the22

clause. ” Arizona , 567 at 406 , 132 S. Ct. at 2504

– 05 (quoting Geier v. Am.
Honda Motor Co. , 529 U.S. 861, 869

– 70, 120 S. Ct. 1913, 1919

– 20 (2000)).
Justice Kennedy continued that the “ Arizona law would interfere
with the car e ful balance struck by Congress with respect to unauthorized employment of aliens. ” Id. at 406 , 132 S. Ct. at 2505. Although the goals and methods of Arizona law to achieve deterrence were the same as federal law, Justice Kennedy observed, the conflic t is in “the method of
enforcement” and that “[ c ] onflict in tec hnique can be fully as disruptive to the system Congress enacted as conflict in overt policy.” Id. (quoting Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge , 403 U.S. 274, 287, 91 S. Ct. 1909, 1918 (1971)). Justice Kennedy next examined the third challenged provision of
Arizona law which provided that a state officer , “without a warrant, may arrest a person if the officer has probable cause to be lieve .

. . [the
person ] has committed any public offense that m akes [him] removable
from the United States.” Id. (quoting Ariz. Rev. Stat. Ann. § 13

- 3883(A)(5)). After canvas s ing federal law related to removal, Justice Kennedy observed the Arizona statu t e gave state officers even greater authority to arrest aliens on the basis of possible removability than Congress gave to train ed federal immigration officers. Id. at 408

– 09 , 132
S. Ct. at 2506. The state authority could be exercised without any input
from the f ederal g overnment regarding whether an arrest is warra nted in a particular case. Id. This, according to Justice Kennedy, “would allow
the State to ach ieve its own immigration policy.” Id. Justice Kennedy further reasoned that allowing state authorities to
determine whether an alien should be detained for being remov able violates the principle that “the removal process is entrusted to the23

discretion of the Federal Government.” Id. Authorizing state and local
officials to interfere with this discretion “creates an obstacle to the full purposes and objectiv es of Congress.” Id. at 410 , 132 S. Ct. at 2507. Finally, Justice Kennedy turned to the fourth challenged provision
of Arizona law. Id. This fourth challenged provision required state officers to make a “ reasonable attempt” to determine the immigration
status of any person they stop or arrest if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United
States.” Id. (quoting Ariz. Rev. Stat. Ann. § 11

- 1051(B)). Furth er, the law provided that the immigration status of any person arrested would be
determined before release. Id. Ordinarily, checking the immigration status of a detained person involved a contact to Immigration and
Customs Enforcement ( ICE ) , which keeps a data base of immigration
records. Id.
The Court upheld this provision of Arizona law against preemption
attack. Id. at 416 , 132 S. Ct. at 2510. Justice Kennedy noted that cooperation between federal and state officials is an important part of the immigration system. Id. at 411 , 132 S. Ct. at 2508. Further, Congress required ICE to respond to requests for verification from state officials.
Id

. Justice Kennedy close d his opinion with a melodious endorsement of the beneficial aspects of imm igration. Id. at 415

– 16 , 132 S. Ct. at
2510. He cited an immigration ceremony at the Smithsonian involving a dozen immigrants who stood before the tattered flag that inspired the
national anthem. Id. He noted the history of the United States “is in part made of the stories, talents, and lasting contributions of those who
crossed oceans and des erts to come here.” Id.24

2. Application of p reemption p rinciples to i mmigration l aw b y l ower f

ederal c ourts

. After Arizona , lower federal courts have grappled with federal preemption questions involvi ng immigrants and employment.
The closes t precedent to the case before us arises from the state of
Arizona.
In Puente Arizona v

. Arpaio , plaintiffs attacked two Arizona statutes
which criminalize d the act of identity theft done with intent to obtain or continue employment. 76 F. Supp. 3d 833 , 842 (D. Ariz. 2015), rev’d in part and vacated in part , 821 F.3d 1098 (9th Cir. 2016). The challenged Arizona aggravated identity theft statute provided that “[a] person commits aggravated taking the identity of another person .
. . if the person knowingly ta kes . . . or uses any personal identifying information

. . . of .

. . [ a ] n other person, including a real or fictitious person, with the intent to obtain employment. ” Id. at 844 (quoting Ariz. Rev. Stat. Ann. § 13

– 2009)

. Another Arizona statu t e provided that a person commits identity theft by taking, purchasing, manufacturing, recording, possessing , or using personal identifying information with the intent to engage in an unlawful purpose or to cause economic loss, or “with the intent to obtain or continue employment.” Id. at 844

– 45. The district court granted a preliminary injunction against
enfor cement of the statutes on preemption grounds. Id. at 869. The court recognized that the statutes were facially neutral and applied to immigrant s and non immigrants alike. Id. at 85 4

. The court noted that a
state law may not “frustrate the operation of federal law [even if] the state legislature in passing its law had some purpose in mind other than one of frustration. ” Id. at 855 (alteration in original) (quoting Perez v. Campbell , 402 U.S. 637, 651

– 52, 91 S. Ct. 1704, 1712 (1971)). In any event, based on legislative history and common sense , the court25

determined that a primary purpose and effect of the statutes was to impose criminal penalties on unauthorized aliens who sought or engage d in unauthorized employment. Id

. Turning to preemption analysis, the district court reasoned that in
Arizona , the Supreme Court did not conclude Congress had occupied the
field of “unau thorized

- alien employment.” Id. at 856. Instead, the district court stated the high court applied conflict preemption principles in striking down an Arizona law that made it a crime for unauthorized aliens to seek employment. Id. But in this case, the district court noted, the plaint iffs identified a narrower field, namely, “unauthoriz ed

- alien fraud in seeking employment.” Id. This narrower field, according to the court, “ ha [ d ]
been heavily and comprehensively regulated by Congress. ” Id. The court cited extensive regulations in th e IRCA , emphasizing that Congress imposed every kind of penalty that can arise from unauthorized alien use of false document to secure employment

— criminal, civil, immigration

— and ha d expressly limited states use of federal employment verification
documents. Id. at 857 ; s ee 8 U.S.C. § 1324a(b)(5), (d)(2)(F)

– (G). The district court turned to conflict preemption. Puente Ariz ., 76 F. Supp. 3d at 857. The court noted that in considerin g conflict preemption, direct conflict between federal law and state law i s not required. Id. According to the court, even when state and federal laws have the same general objective, an “inconsistency of sanctions” between two laws may “undermine [] the cong ressional calibration of force.” Id

. (quoting Crosby , 530 U.S. at 380, 120 S. Ct. at 2298). The district court noted that under the Arizona identity theft law, only a criminal sanction

was available. Id. at 858. In contrast , federal authorities had a range of options, including civil penalties. Id.26

The district court concluded the overlapping penalties created by the Arizona identity theft statutes which “layer additional penalties atop federal law” likely result in preemption. Id. (quoting Ga. Latino All. for Human Rights v. Governor of Ga. , 691 F.3d 1250, 1267 ( 11th Cir. 2012) )

. Like the United States Supreme Court in Arizona , the district court noted
that c onflict is imminent whenever “two separate remedies are brought to
bear on the same ac tivity.” Id. (quoting Gould Inc. , 475 U.S. at 286, 106
S. Ct. at 1061). As a result, th e court entered a preliminary injunction prohibiting the enforcement of the identity theft statutes. Id. at 869.
The United States Court of Appeals for the Ninth Circuit reversed
the district court in Puente Arizona v

. Arpaio , 821 F.3d 1098 , 1111 ( 9th Cir. 2016). The Ninth Circuit reversal, however, was on a narrow ground, namely, that the facially neutral Arizona statutes were not facially preempted. Id. a t 1108. The Ninth Circuit came to this
conclusion becaus e the statutes did not intrude on federal authority in all its applications, as generally required for a successful facial attack.
Id. at 1107

– 08. The Ninth Circuit expressed no view as to whether the statutes were preempted on an as

- applied basis. Id. at 1108. On remand, the district court considered whether the Arizona statutes were preempted as applied. Puente Arizona v

. Arpaio , No. CV

14

- 01356

- PHX

- DGC, 2016 WL 6873 294 , at *1 ( D. Ariz. Nov

. 22, 2016). The court found that Congress preemp ted “a relatively narrow field: state prosecution of fraud in the I

- 9 process.” Id

. at *12. In light of the intruding provisions of state identity theft laws, the court concluded the defendants were preempted under field preemption from using the I

- 9
form and accompanying documentation for investigations or prosecutions of violations of the Arizona identity theft and forgery
statutes. Id

. at *13.27

The district cour t then turned to conflict preemption. Id. The court determined the Arizona identity theft and forgery statutes were not conflict preempted. Id. at *15. The court emphasized that federal law only imposed criminal and civil penalties for fraud committed directly in
the I

- 9 process, or to satisfy other immigration requirements or receive

o ther immigration benefits. Id. at *13. But , the court reason ed, to the extent state law imposed penalties on fraud committed outside the I

- 9 process, the state penaltie s did not “ layer additional consequences on top of federal penalties because the federal penalties [ did ] not address non

- I

9 conduct. ” Id . The cour t found that use of a false name on an employer’s direct deposit payroll form, for example, is not done for an immigration purpose, but rather to obtain the convenience of direct payroll deposits. Id

. at *1 4

. Another case arising out of Arizona deal t with the question of conflict preemption of a state policy refusing to allow DACA recipients to obtain Arizona drivers ’ licenses. Ariz. Dream Act Coal. v. Brewer , 757 F.3d 1053, 1057

– 58 (9th Cir. 2014). In Brewer , the Ninth Circuit considered an appeal of a denial of a preliminary injunction restraining the state from enforcing the statute. Id. at 1058

. The Ninth Circuit reversed and remanded the matter for entry of a preliminary injunction prohibiting the defendants from enforcing its policy. Id

. The Brewer court declared that the plaintiff’s contention that
Arizona’s policy was conflict preempted because of its interference with Congre ss’s intent that the e xecutive b ranch possess discretion to
determine when citizens work in the United States wa s p lausible. Id. at
1061.
The Brewer court then turned to the impact of Arizona law on federal policy. Id. at 1062. The court reasoned that, as a practical28 matter, the ability to drive is a virtual necessity for people in Ariz ona who
want to work. Id. The court emphasized it did not matter that the state’s policy did not formally prohibit DACA recipient s from working , because preemption analysis must contemplate the practical result of the state
law. Id

. The court reasoned that if the practical effect of the Arizona policy “ is that DACA recipients in Arizona are generally obstructed from working

— despite the E xe cutive’s determination, backed by a delegation of Congressional authority, that DACA recipients through ou t the United States may work

— then the [ state’s ] policy i s preempted. ” Id. at 1063. The court emphasized that state law “is preempted w henever its application would frustrate the objectives and purposes of Congress, even if the state law’s own application is frustrated by individuals ’ noncompliance.” Id. On remand, the district court granted a p ermanent injunction and the state appealed. Ariz. Dream Act Coal. v. Brewer , 81 F. Supp. 3d 795, 811 (D. Ariz. 2015). The Ninth Circuit affirmed. Ariz.
Dream Act Coal

. v. Brewer , 818 F.3d 901, 920, amended by 855 F.3d
957. Another case involving identity fraud is United States v. Sout h
Carolina , 720 F. 3d 518 ( 4th Cir. 2013). In South Carolina , the Fourth Circuit considered the validity of a state statute making it unlawful for any person to display or possess a false or counterfeit ID for “ purpose [ s ] of proving lawful presence in the United States. ” Id

. at 5 2 2. The state argued that a presumption against preemption applied because “fraud is an area traditionally for state legislation.” Id. at 532. The Fourth Circuit, however, noted that when the fraud at issue involved federal immigratio n documents, the presumption against preemption did not apply. Id. The Fourth C ircuit further stressed,29 As with other immigration

- rel ated measures, prosecution for counterfeiting or using federal immigr ation documents is at the discretion of t he Department of Jus tice acting through the United States Attorney, and allowing the state to prosecute individuals for violations of a state law that is h ighly similar to a federal law strips federal officials of that discretion.
Id. at 532

– 33. Concludin g that Congress had occupied the field, the
Fourth Circuit noted that because enforcement of federal antifraud
statutes involve d the discretion of federal officials, a state’s own law in the area, inviting state prosecutions, would “stand [] as an obstacle to the accomplishment and execution of the full purpo ses and objectives of Congress. ” Id

. (quoting Hines , 312 U.S. at 67, 61 S. Ct. at 404 ).
3. Summary of g eneral p rinciples of p reemption in the f ield of

m odern i mmigration l aw. There are two general discernable trends in the field of immigration. First, over time, federal regulation of immigration has become increasingly detailed and complex. Second, as noted by one legal expert, the trend in court decisions reflects recognitio n of broad federal control over nearly the entire field of immigration. Fandl, 9 Harv. L. & Pol’y Rev. at 5 32

. The expansive scope of federal preemption doctrine in the immigration field recognizes, among other things, the role of discretionary enforceme nt. Discretion has been baked into the cake of immigration law for many years through c ongressional e nactment and
caselaw. State law regulatory schemes that interfere with the systematic implementation of federal enforcement discretion present an obstacl e in one of the main purposes of federal immigration policy: to speak with one voice on immigration matters. For this reason, state m irror

- image enforcement of federal immigration law was soundly rejected in Arizona , 567 U.S. at 410 , 132 S. Ct. at 2507.30 Finally, through the enactment of 8 U.S.C. § 1357(g), Congress has
de monstrated an ability to identif y areas of potential federal

– state cooperation in the enforcement of immigration law. Notably, however,
such federal

– state cooperation must be subject to written agreements, involve training of state officials, and be conducted under the supervision
of federal authorities. 8 U.S.C. § 1357(g)(1). Even where federal

– state cooperation has been expressly authorized, Congress has insisted on
substantial federa l control of the underlying activities.
D
. Application of Preemption Princi ples to Iowa’s Forgery
Statute. Iowa Code section 715A.2(2)( a )(4) is preempted on its fa ce by federal immigration law. The statute provides that forgery arises if the writing is or purports to be “ [ a ] document prescribed by statute, rule, or regulation for entry into or as evidence of authori zed stay or employment
in the United States.” Iowa Code § 715A.2(2) ( a ) (4). T hi s statutory provision is the mirror image of federal immigration law, namely 18
U.S.C. § 1546(a).
Such mirror

- image statutes are preempted by federal law. As noted in Arizona when the Supreme Court considered state law imposing penalties for federal alien registration violations, “[p]ermitting the State to impose its own penalties .

. . would conflict with the careful framework Congress adopted.” Arizona , 567 U.S. at 402 , 132 S. Ct. at 250 2

. Further, i t would impermissibly divest “ federal authorities of the exclusive power to prosecute these crimes.” Valle del Sol Inc. v. Whiting , 732 F.3d 1006, 1027 ( 9th Cir. 2013) ; s ee Ga. Latino All

. , 691 F.3d at 1267 ( finding a Georgia statute , which “layer [ ed ] additional penal ties atop federal [immigration] law , ” preempted ) . As noted by the United States Supreme Court, under such mirr or

- image enforcement “ the S tate would have the p ower to bring criminal charges against individuals for31 violating a federal law even in circumstances where federal officials in
char ge of the comprehensive scheme determine that prosecution would frustrate federal policies .” Arizona , 567 U.S. at 402 , 132 S. Ct. at 2503

. E
. Application of Preemption Principles to Prosecution of
Martinez U nder Iowa’s Identity Theft Statute.
1. Facial p reemption. Unlike Iowa Co de section 715A.2(2)( a )(4) , Iowa’s identity theft statute , Iowa Code section 715 A .8 , does not directly
track the language of federal immigration law. Because the identity theft
statute has a potentially broader application outside the immigration context, it is not facially preempted by federal immigration law. An unauthorized alien who committed identity theft outside the field occupied by federal immigration law could be prosecuted under state
law. For example, identity theft to defraud a bank by an unauthorized alien would not be preempted by federal immigration law and prosecution of an alien for such a cri me would be well within the
traditional police power of the states. Further, many persons may be prosecuted under the statute who are not aliens but are United States citizens. While enforcement of identity theft may be preempted by federal immigration l aw in some contexts, it is only preempted to the extent it intrudes upon , interferes , or is an obstacle to the implementation of federal immigration law. See Puente Ariz

. , 821 F.3d at 1106

. 2. Field p reemption as a pplied to Martinez

. While the identity theft statute is not preempted in all its application s , that is not the end of the analysis. As noted in Gade v. N a tional Solid Waste Management
As sociation , a statu t e “is not saved from pre

- emption simply because the
State can demonstrate some additional effect outside of the [preempted area]. ” 505 U.S. 88, 107 , 112 S. Ct. 2374, 2388 (1992). The notion a statute may be preempted in some of its applications was recognized by32 the United States Supreme Court in Hillman v

. Maretta , 569 U.S. ___,
133 S. Ct. 1943 (2013). In Hillman , the Court held that a particular Virginia statute would be preempted only as applied to federal employees. Id. at ___, 133 S. Ct. at 1955. The notion that state statutes may be preempted as applied has been utilized in the immigration law
context. See Brewer , 757 F.3d at 1062

. We now turn to the question of whether the statute is field preempted as applied in this case. Here, the only factual basis for the
S tate’s charge that Martinez used false identity documents “to obtain credit, property, and services”

— an essential element in the crime of identity theft

— is the allegation that Martinez obtained unauthorized employment.
T he Iowa identity theft statute is preempted to the extent it regulates fraud committed to allow an unauthorized alien to work in the
United States in violation of federal immigration law. The IRCA is a comprehensive statute that brought regulation of alien employment
under the umbrella of federal immigration policy. See Hoffman Plastic , 535 U.S. at 147 , 122 S. Ct. at 1282

. Under its comprehensive scheme, Congress made employers primarily responsible for preventing
unauthorized ali ens from obtaining employment.
To the extent fe deral immigration authorities choose to proceed with sanctions against unauthorized aliens, the IRCA establishes a comprehensive regime of criminal, civil, and immigration related
consequences. See , e.g. , 8 U.S.C. § 13 24c; 18 U.S.C. § 1546. These multiple sanctions establish a system that c an work as a “harmonious
whole.” Valle del Sol , 732 F.3d at 1025

. Because the federal immigration law occupies the field regarding the employment of unauthorized aliens,
the S tate in this case cannot pro secute Martinez for identity theft related33 to false documentation supplied to her emplo yer as an unauthorized
alien. She may, of course, be subject to prosecution under 8 U.S.C. § 1324c and 18 U.S.C. § 1546. Any such prosecution rests in the
discretion o f federal prosecutors

. The United States Supreme Court’s approach in Arizona supports our analysis. In Arizona , the United States Supreme Court held that the federal plan related to alien registration was “a single integrated and al l

embracing system” designed as a “harmonious whole” with a “full set of
standards .

. . including punishment for noncompliance. ” 567 U.S. at
400

– 01 , 132 S. Ct. at 2501

– 02 (quoting Hines , 312 U.S. at 72, 74, 61
S. Ct. at 407

– 08) . Here, the same can be said for the field of unauthorized employment of aliens. Congress has dominated the field and because Congress has “adopted a calibrated framework within the
INA to address this issue , ” any “state’s attempt to intrude into this area is prohibited.” Ga. Latino All. , 691 F.3d at 1264. The federal government occupies the field and “even complementary state regulation is impermissible.” Arizona , 567 U.S. at 401 , 132 S. Ct. at 2502.
3. Conflict pr eemption as a pplied to Martinez

. We also conclude
that enforcement of Iowa’s identity theft statute is conflict preempted in
this case. A ny prosecution under the Iowa identity theft statute
frustrates c ongressional purpose and provides an obstacle to the implementation of federal immigration policy by usurping federal
enforcement discretion in the field of unauthorized employment of aliens.
See id. at 399

– 400 , 132 S. Ct. at 2501

. As further noted in Arizona , a conflict in technique can be as fully disruptive to the system Congress
enact ed as conflict in overt policy. Id. at 407 , 132 S. Ct. at 2505. A state statute is preempted when it stands “as an obstacle to the34 accomplishment and execution of the full purposes and objectives of Congress.” Id. (quoting Hines , 312 U.S. at 67, 61 S. Ct. at 404). Additionally, the full purposes and objectives of Congress in the employment of unlawful immigrants include the establishment of a comprehensive federal system of control with a unified discretionary enforcement regime. As noted in South Carolina , it is the prerogative of federal officials to police work authorization fraud by aliens . 720 F.3d at 533

. Federal discretion in the enforcement of immigration law is essential to its implementation as a harmonious whole. The reasons for
exercise of federal discretion are va ried. Federal officials often rely upon
unauthorized aliens to build criminal cases involvin g drugs or human
traffickers. The risk faced by unauthorized aliens being subject to violations of labor laws by exploiting employers is a discretionary factor
to be taken into account by federal officials. Arizona , 567 U.S. at 404

– 05 , 132 S. Ct. at 2504. Enforcement may be affected by foreign affairs or a need to account for reciprocal enforcement in other countries. Id. at 395 , 132 S. Ct. at 2498. A s Justice Kennedy noted in Arizona , “D iscretion in the enforcement of immigration law embraces immediate
human con cerns. Unauthorized workers trying to support their families,
f or example, likely pose less danger than

. . . aliens who commit a serious cri me
. ” Id. at 396 , 132 S. Ct. at 2499

. Local enforcement of laws regulating employment of unauthorized aliens would result in a patchwork of inconsistent enforcement that would undermine the harmonious whole of national immigration law. This case is a classic demonstration of why preemption is necessary. Federal authorities in this case appear to be willing to defer any potential federal immigration action on equitable and humanitarian grounds.
Martinez came to the United States as a ch ild, an illegal entry for which35 she is not personally responsible. She was educated in Iowa, has no criminal record, is a productive member of the community, and now has
four children who are citizens of the United States. Federal immigration
authorities routinely take these equitable and humanitarian considerations into account in the enforcement of immigration law. Federal enforcement officials might well weigh the fact that a mother would be separated from her four children who are United States citiz en s as a very undesirable result. Further, Martinez stepped forward as part of a federal program,
DACA. She provided relevant immigration authorities with information and was granted deferred status. Federal authorities might blanch at prosecuting a per son who in good faith responded to their invitation to come out of the shadows for deferred action. See Brewer , 7 5 7 F.3d at
1063 (citing the practical effect of Arizona policy being DACA recipients

were barred from working)

. The state prosecutor in this case, however, seems to have a different philosophy and, as reflected in the charging decision to seek
Martinez ’s conviction on two felonies, exposed her to a significant Iowa prison term and removal from the country. If such local exercise of prosecutori al discretion were permitted, the harmonious system of federal immigration law related to unauthorized employment would literally be destr oyed. Allowing Iowa to enforce its identity theft statute in the context of the employment of an unauthorized alien c onflicts with Congress’s
chosen method of enforcement. See Arizona , 567 U.S. at 406

– 07 , 132
S. Ct. at 2505. Federal prosecution of immigration crimes are brought by the appropriate United States Attorney. United States Attorneys
exercise their discretio n in a manner consistent with the established36 priorities of the a dministrations they serve. Ga. Latino All. , 691 F.3d at
1265. Although federal law allows state

– federal cooperative enforcement by agreement under certain circumstances, there is no applicable agreement here. See 8 U.S.C. § 1357 (g)(1)

. Allowing state prosecutors to pursue identity theft criminal prosecutions in which the crimes are based on unlawful employment by unauthorized aliens would threaten uniform application of immigrati on law. See Ga. Latino All. , 691 F.3d at
1266.
III. Conclusion
. For the above reasons, we reverse the decision of the district court and remand the case for entry of an order of dismissal.
REVERSED AND REMANDED WITH DIRECTIONS. Cady, C.J., Wiggins and Hecht, JJ., join this opinion. Cady, C.J., files a special concurrence in which Wiggins, J., joins. Wiggins, J., files a separate special concurrence. Mansfield, Waterman, and Zager, JJ.,
dissent.37
# 15

– 0671 , State v. Martinez CADY , Chief Justice (concurring specially). I join the opinion of the court. I write separately to elaborate on the principles it expresses. The State uses two criminal laws to prosecute Martha Martinez. One is the crime of identity theft. The oth er is the crime of forgery. The question is whether the prosecution of an unauthorized alien for these crimes in the manner pursued in this case violates the federal preemption doctrine. Without question the authority to regulate immigration is
“exclus ively a federal power.” De Canas v. Bica , 424 U.S. 351, 354, 96
S. Ct. 933, 936 (1976). Moreover, under the Immigration Reform and Control Act, Congress has clearly decided not to impose criminal penalties on aliens who seek or engage in unauthorized emp loyment.
Arizona v. United States , 567 U.S. 387, 406 , 132 S. Ct. 2492, 2505 (2012). Any state law contrary to this approach is an impediment to the regulatory power of Congress and contrary to the Supremacy Clause of
the United States Constitution

. See id. Thus, no state may impose criminal penalties on unauthorized employees. The crime of identity theft does not conflict with the federal preemption doctrine on its face. It criminalizes the fraudulent use of
identification information of another “wi th intent to obtain credit, property, services, or other benefits.” Iowa Code § 715A.8(2) (2013). This crime is elevated from an aggravated misdemeanor to a felony when the value of the credit, property, services, or other benefit obtained exceeds $1000. Id. § 715A.8(3). Identity theft is a serious crime, and states are normally free to prosecute violators, whether citizens or aliens.38 Yet, the State in this case has not just prosecuted an unauthorized alien for using false information, but has prosec uted the unauthorized alien for using the false information to obtain employment and to earn wages from that employment. Consequently, the State has used the law in a way to criminalize the conduct of an unauthorized alien who applied for and obtained a j ob with false identification and earned wages from the job. While the State could use the crime to prosecute an unauthorized alien for a variety of conduct related to identity theft, the conduct here is tied to a narrow area controlled by Congress.
It is important to observe that the United States of America is bound together by shared constitutional values. These national values are protected by the preemption doctrine from state laws that directly contravene them, just as they are protected from stat e laws that would work against them in less obvious ways. Courts have played a critical role in seeing through state laws that may appear neutral and benign on their face, but work subtly or indirectly to violate a fundamental precept
of our Federal Const itution. This has been observed in a variety of areas. For example, courts have been vigilant to strike down state laws that indirectly interfere with the right to vote, just as they would with state laws that would attempt to do so directly. See Harper v. Va. State Bd. of
Elections , 383 U.S. 663, 668

– 69, 86 S. Ct. 1079, 1082 (1966). Likewise, in the area of discrimination, the Court has long held, Though the [state] law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibi tion of the constitution.39 Yick Wo v. Hopkins , 118 U.S. 356, 373

– 74, 6 S. Ct. 1064, 1073 (1886). Simply put, “The Constitution does not make judicial observance or enforcement of its basic guaranties depend on whether their violation appears from the fac e of legislation or only from its application to proven
facts.” Yakus v. United States , 321 U.S. 414, 484, 64 S. Ct. 660, 696 (1944) (Rutledge, J., dissenting). In this case, the crime requires the job applicant to secure employment and begin earning w ages in order to satisfy the criminal
element of value. See Iowa Code § 715A.8(3). The State argues the law is permissibly intended to protect potential victims of identity theft, but “any state law, however clearly within a State’s acknowledged power,

w hich interferes with or is contrary to federal law, must yield.” Free v. Bland , 369 U.S. 663, 666, 82 S. Ct. 1089, 1092 (1962); see also Henderson v. Mayor of N.Y. , 92 U.S. 259, 272 (1875) (“[N]o definition of [the state police power], and no urgency for its use, can authorize a State to exercise it in regard to a subject

- matter which has been confided exclusively to the discretion of Congress by the Constitution.”). The identity theft law may not specifically target unauthorized
workers or be the full frontal assault on the employment of unauthorized aliens found prohibited in Arizona , 567 U.S. at 406

– 07 , 132 S. Ct. at 2505, but the outcome, nevertheless, is not saved from the doctrine of federal preemption. See Gade v. Nat’l Solid Wastes Mgmt. Ass’n , 505 U.S. 88, 105, 112 S. Ct. 2374, 2386

– 87 (1992) (“Although ‘part of the
pre

- empted field is defined by reference to the purpose of the state law in question,

. . . another part of the field is defined by the state law’s actual
effect.’ ” (alteration in original) (quoting English v. Gen. Elec. Co. , 496 U.S. 72, 84, 110 S. Ct. 2270, 2278 (1990)). As applied to unauthorized aliens who use identification information in seeking employment, the law40 interferes with the efforts of Congress to regulate matters g overning unauthorized alien employees every bit as it interfered in Arizona

. The crime of forgery as used in this case also violates the preemption doctrine. This result is only more obvious. The holding in
Arizona discussing a state alien registration statute needs only a few words changed to illustrate the conflict with the preemption doctrine in
this case: [Iowa] contends that [Iowa Code section 715A.2(2)( a )(4)] can survive preemption because the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption

— that States may not enter, in any respect, an area the Federal Government has reserved for itself

— but also is unpersuasi ve on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted.
Arizona , 567 U.S. at 402 , 132 S. Ct. at 2502. By imposing state criminal penalties for “forg ery .
. . to [obtain] employment” on top of the existing federal system regulating the employment of aliens, Iowa Code section 715A.2(2)( a )(4) robs the federal government of the discretion it has so carefully reserved. It may not do so. That discretion, ever decreasing in its availability, see Padilla v. Kentucky , 559 U.S. 356, 363

– 64, 130 S. Ct. 1473, 1480 (2010), is crucial to the federal scheme. See Arizona , 567
U.S. at 396 , 132 S. Ct. at 2499 (“Discretion in the enforcement of immigration law embrace s immediate human concerns.”); Gabriel J. Chin & Marc L. Miller, Broken Mirror: The Unconstitutional Foundations of New State Immigration Enforcement , in Strange Neighbors: The Role of States in Immigration Policy 167, 170 (Carissa Byrne Hessick & Gabriel J. Chin, eds. 2014) (“[T]he discretion inherent in the federal immigration regime, and in federal criminal enforcement more generally

— the power to charge or not, to decide what to charge, and to choose whether to pursue civil or41

administrative measures

— is itself a fundamental part of the law of immigration.”). State authority is limited by “the scope of [its] police powers.” Fla. Lime & Avocado Growers, Inc. v. Paul , 373 U.S. 132, 146,
83 S. Ct. 1210, 1219 (1963). No definition of the State of Iowa’s pol ice powers would authorize it to regulate immigration. See Henderson , 92
U.S. at 272. These state laws, whether by design or effect, have intruded in an area wholly occupied by the federal government. They are therefore preempted by Article VI, Clause 2 of the U.S. Constitution. Wiggins, J., joins this special concurrence.42

#15

– 0671, State v. Martinez WIGGINS, Justice (specially concurring). I join the majority opinion and write separately to emphasize the issue of prosecutorial discretion. Martha Aracely Martinez was born in Mexico. Her parents brought her to Muscatine, Iowa, when she was eleven years old. It was not her choice to come here. Since then, she has lived in Muscatine, attended local schools, and worked in the community. When her parents brought her to the United States, she did not have a lawful immigration status. Because she had no immigration status, she could not lawfully obtain a driver’s license or lawful employment when she became old enough to do

so. When she was s eventeen years old, Martinez used fictitious documents to acquire an Iowa driver’s license, which in turn, she used to obtain employment. She was a model citizen, contributing member of the community, and employed for thirteen years. After Deferred Actio n for Childhood Arrivals ( DACA) 2 protection coaxed Martinez from the shadow of deportation to acquire lawful immigration status and work authorization, the Muscatine County Attorney charged her with crimes for previously using the fictitious documents to obtain a license and employment. Importantly, there is nothing in the record to indicate that her use of the fictitious documents caused anyone harm. As Martinez approached adulthood, she had to figure out a way to survive in a country her parents brought her to as a child. This count ry

2 Memorandum from Janet Napolitano, Sec’y of U.S. Dep’t of Homeland Sec. to David L. Aguilar, Acting Comm’r, U.S. Customs & Border Prot.; Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs.; and John Morton, Dir., U.S. Immigration & Customs Enf’t (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s 1

- exercising

prosecutorial

- discretion

- individuals

- who

- came

- to

- us

- as

- children.pdf.43 is the only country she knew. She chose to support herself and her children by participating in the legal economy. She did not have any other good choices. One bad choice would be to support herself and her family by engaging in illegal activities. Another would be to support herself by participating in the underground economy. If she did get involved in either the illegal or the underground economy, she could have become a victim of human trafficking. See Dina Francesca Haynes, Exploitation Nation : The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers , 23 Notre Dame J.L. Ethics & Pub. Pol’y 1, 44

– 45 (2009). Yet, another choice would be to return to a country that was never her home. When DACA became available, Mart inez came forward to obtain legal immigration status and proper work authorization. At each step, it seems, Martinez attempted to do right in difficult circumstances created by her parents when she was only a child. According to the record and by all mea sures, Martinez has been a valuable contributor to her community and our state. At the time the county attorney decided to exercise his discretion to file charges, she had three young children and was pregnant with her fourth child. At the time he filed the charges, the county attorney knew there was a good chance Martinez could be deported, which would force her children, three American citizens, to leave the country or stay here and fend on their own. The county attorney “is an administrator of justice, an advocate,
and an officer of the court.” ABA Standards for Criminal Justice:
Prosecution Function and Defense Function 3

- 1.2(b), at 4 (3d ed. 1993) [hereinafter ABA Standards]. As Judge Weinstein noted over thirty years
ago,44 [a]ny ethical and procedur al obligation of a private attorney to be fair to opponents and candid with the court is enforceable when the litigant is represented by an attorney for the government. As a United States Attorney General put it more than a hundred years ago, “in the perf ormance of .

. . his duty .

. . he is not a counsel giving advice to the government as his client, but a public officer, acting judicially, under all the solemn responsibilities of conscience and legal obligations.”
Zimmerman v. Schweiker , 575 F. Supp. 14 36, 1440 (E.D.N.Y. 1983) (quoting Office & Duties of Att’y Gen. 6 Op. Att’y Gen. 326, 334 (1854)). Further, the county attorney “must exercise sound discretion in the performance of his or her functions.” ABA Standards 3

- 1.2(b), at 4.
As an administrator of justice, the county attorney has significant power, and with it, must use appropriate restraint. The county attorney has a duty to “seek justice, not merely convict.” Id. 3

- 1.2(c), at 4. Ultimately, however, Congress vests the United States governm ent with the discretion to prosecute persons in similar situations as Martinez, not the ninety

- nine local county attorneys in our state. It is up to the United States government to exercise its discretion appropriately and seek justice.45 #15

– 0671, State v. Martinez MANSFIELD, Justice (dissenting). I respectfully dissent. The court has established an exemption from generally applicable Iowa law for the exclusive benefit of unauthorized aliens seeking employment in our state. Under the majority’s ruling, an American citizen who works in Iowa under a false name because she is being chased by a bill collector and wants to avoid garnishment can be prosecuted, but a foreign national who works in Iowa under a false name
to avoid detection is immune. That is th e wrong reading of federal preemption. The correct reading comes from the district court, which denied Martha Martinez’s motion to dismiss and provided the following straightforward explanation: [I]dentit y theft and forgery are state crimes independent of the Defendant’s immigration status. In this prosecution, the State takes no action to enforce or attack [the Immigration Reform and Control Act]. The State’s sole interest is the protection of citizens from identity theft and to protect employers from pe rsons who apply for employment under false names and forge signatures of the names of persons whose identities they have stolen. I agree with the district court’s reasoning and would affirm. Although the majority tries to justify its decision based on field preemption and conflict preemption, neither doctrine can sustain its ruling. In the critical part of the majority opinion (i.e., the end of it where the actual legal analysis occurs), my colleagues quote cases out of context and paraphrase cases as saying things they don’t actually say. Let me give one example from field preemption and another from conflict preemption. The majority today concludes that Congress has occupied the field of employment of unauthorized aliens, thus precluding46

the states f rom enforcing their generally applicable laws, such as identity theft. I am unaware of any other court that has so held. From reading Part II.E.2 of the court’s opinion, though, one might get the impression
that Georgia Latino Alliance for Human Rights v . Governor of Georgia , 691 F.3d 1250 (11th Cir. 2012), found field preemption as to employment of unauthorized aliens and therefore supports today’s decision. One would be wrong. Georgia Latino actually found that Congress had occupied the field of unlawf ul transport and movement of aliens

— not employment. Ga. Latino , 691 F.3d at 1264. That’s a big difference. Turning to conflict preemption, in Part II.E.3 the court cites and relies upon United States v. South Carolina , 720 F.3d 518 (4th Cir. 2013).
The court asserts that this case holds “it is the prerogative of federal officials to police work authorization fraud by aliens.” But South Carolina says no such thing. The state

- law crime there involved displaying or possessing false documents “for the purp ose of proving lawful presence
in the United States.” Id. at 532. Presence in the United States, naturally, is a particular concern of the government of the United States. That isn’t what this case is about. It is about using a false Iowa
identificatio n card to obtain employment from an Iowa employer. To put today’s decision into context, it is helpful to compare it to a recent decision of the United States Court of Appeals for the Ninth Circuit. Recently, the Ninth Circuit held that Arizona’s policy o f denying drivers’ licenses to all persons protected by the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program was preempted by federal law. See Ariz. Dream Act Coal. v. Brewer , 818 F.3d 901, 917 (9th Cir. 2016), amended by 855 F .3d 957 (9th Cir. 2017), petition for cert. filed , 85 U.S.L.W. 3471 (U.S. Mar. 29, 2017) (No. 16

– 1180). This has sparked disagreement. Dissenting from the denial of rehearing en47 banc, six judges of that court noted that DACA had not been approved by Congress but was just the President’s “commitment not to deport.” Ariz.
Dream Act Coal. , 855 F.3d at 958 (Kozinski, J., dissenting from the denial of rehearing en banc). They asked, “Does the Supremacy Clause nevertheless force Arizona to issue drivers’ licenses to the recipients of the President’s largesse?” Id. They characterized the Ninth Circuit panel opinion as relying on a “puzzling new preemption theory.” Id. Today’s decisi on goes much farther than that “puzzling” Ninth Circuit decision. Instead of giving the benefits of preemption to people
whom the Obama Administration affirmatively exercised its discretion to protect , as the Ninth Circuit did in Arizona Dream Act Coaliti on , the court today gives the benefits of preemption to someone on whose behalf the
Obama Administration declined to exercise its discretion

— namely, a person who has committed identity fraud and forgery. In order to be eligible for deferred status under DA CA, an individual must not have been convicted of any felony offense (or misdemeanor punishable by more than one year in prison) in the United
States. See Memorandum from Janet Napolitano, Sec’y of U.S. Dep’t of
Homeland Sec. to David L. Aguilar, Acting C omm’r, U.S. Customs & Border Prot.; Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs.; and John Morton, Dir., U.S. Immigration & Customs Enf’t (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1

- exercising

prosecutorial

- discretion

- individu als

- who

- came

- to

- us

- as

- children.pdf. According to the Department of Homeland Security’s website, any conviction under federal, state, or local law qualifies, and only “[i]mmigration

- related offenses” are excluded. See U.S. Citizenship & Immigration Servs. , Dep’t of Homeland Sec., DACA Toolkit,
p. 23

- 24, https://www.uscis.gov/sites/default/files/USCIS/Humanitari48 an/Deferred%20Action%20for%20Childhood%20Arrivals/DACA

- toolkit. pdf (last visited June 2, 2017). Thus, under DACA, state

- law convictions for identit y theft or forgery are disqualifying. Yet if the Department of Homeland Security did
not believe state

- law identity theft or forgery charges should prevent an unauthorized alien who arrived as a child from remaining in this country, it could have easily s o provided in DACA. It did not. The court thus constructs a preemption theory today on behalf of someone whom the federal executive branch exercised its discretion to decline to protect. Let me make the same point a different way. Since “federal
discret ion” appears to be the core basis for the court’s preemption decision, one would expect the court to cite some statement, from some federal official, in some administration expressing the view that states should not prosecute identity theft and forgery by unauthorized aliens seeking employment. That might demonstrate that Iowa was doing something at odds with federal law enforcement. But the court cites no
such statement. Simply stated, the majority’s approach is not preemption under any cognizable legal doctrine. It is not field preemption. It is not conflict preemption. It is, at best, gestalt preemption. 3 I. Today’s Decision Is Contrary to Precedent, Including Decisions of the United States Court of Appeals for the Ninth Circuit and Appellate Courts in Kansas and Missouri. Five years ago, in Arizona v. United States , the Supreme Court found that several provisions of a recently enacted Arizona law (S.B.

3 In explaining the court’s theory of preemption, the first special concurrence analogizes this case to “state laws that indirectly interfere with the right to vote.” Such
an analogy is off the mark. Citizens have a constitutional right to vote. Unauthorized aliens do not have a constitutional right to work in the United States under a false
name.49 1070) were preempted by federal immigration law. See 567 U.S. 387,
415 , 132 S. Ct. 2492, 2510 (20 12). The stated purpose of S.B. 1070 was to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”
Id. at 393 , 132 S. Ct. at 2497 (quoting note following Ariz. Rev. Stat. Ann. § 11

– 1051 (West 2012)). Two of the four challenged provisions of S.B.
1070 warrant discussion here. Section 3 set forth a new state law misdemeanor consisting of the “willful failure to complete or carry an alien registration document

. . . in viol ation of 8 United States Code § 1304(e) or 1306(a).” Id. at 400 , 132 S. Ct. at 2501 (quoting Ariz. Rev. Stat. Ann. § 11

– 1509(A) (West Supp. 2011)). Section 5(C) made it a state law misdemeanor for “an unauthorized alien to knowingly apply for work,
solic it work in a public place or perform work as an employee or independent contractor” in Arizona. Id. at 403 , 132 S. Ct. at 2503 (quoting Ariz. Rev. Stat. Ann. § 13

– 2928(C)). The Court found that section 3 was subject to field preemption. Id.
at 403 , 132 S

. Ct. at 2503. The Court noted that federal law related to alien registration provided a “full set of standards” and was designed as a
“harmonious whole.” Id. at 401 , 132 S. Ct. at 2502 (quoting Hines v.
Davidowitz , 312 U.S. 52, 72, 61 S. Ct. 399, 407 (1 941)). The federal framework also included criminal punishment for noncompliance. See 8 U.S.C. §§ 1304(e), 1306(a) (2012). Accordingly, the Court determined the federal government had completely “occupied the field of alien registration.” Id. at 401 , 1 32 S. Ct. at 2502. The Court continued, “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.” Id. Thus, even though Section 3 only criminalized activity that was alr eady a federal crime, the federal5 0 government’s occupation of the field of alien registration meant that Arizona “may not enter, in any respect,” that field. Id. at 402 , 132 S. Ct. at 2502 (“Field preemption reflects a congressional decision to foreclose

a ny state regulation in the area, even if it is parallel to federal standards.”). 4 As to section 5(C) of S.B. 1070, the federal government argued conflict preemption, and the Court agreed. Id. at 403, 407 , 132 S. Ct. at 2503, 2505. As the Court explained, persons who violate provisions of the Immigration Reform and Control Act of 1986 (IRCA) by engaging in unauthorized employment are subject to civil penalties, such as losing their eligibility to have permanent status adjusted, or being removed from the country. Id. at 404

– 05 , 132 S. Ct. at 2504 (discussing 8 U.S.C. §§ 1255(c), 1227(a)(1)). However, the IRCA does not “impose federal criminal sanctions on the employee side.” Id. In the Court’s view, Congress made a “deliberate ch oice” not to impose criminal penalties on persons who merely seek or engage in unauthorized employment. Id. “Although § 5(C) attempts to achieve one of the same goals as federal
law

— the deterrence of unlawful employment

— it involves a conflict in the
meth od of enforcement.” Id. at 406 , 132 S. Ct. at 2505. The Court therefore determined that section 5(C) “interfere[s] with the careful balance struck by Congress with respect to unauthorized employment of aliens.” Id. The Court found that section 5(C) was

4 The first special concurrence conflates this part of the Supreme Court’s deci sion with the part dealing with employment of unauthorized aliens. Specifically, to support its claim of field preemption, the first special concurrence provides a block quotation from the Court’s discussion of section 3 of S.B. 1070, urging that this “ho lding

. . . needs only a few words changed to illustrate the conflict with the preemption doctrine in this case.” But the Arizona language in question relates to alien registration , not alien employment , and thus has nothing to do with the present case. See 567 U.S. at 401 , 132 S. Ct. at 2502.51 preempted by federal law because it was “inconsistent with federal policy and objectives” and “an obstacle to the regulatory system Congress
chose.” Id. at 405

– 06 , 132 S. Ct. at 2504

– 05.
Our case involves neither of the two situations identified in
Arizon a . The State is not attempting to prosecute either (1) a failure to comply with alien registration or (2) a mere attempt by an unauthorized alien to secure employment. The present case involves, rather, the use of
a false Iowa identification to obtain th e benefit of employment in Iowa. 5
Since Arizona was decided, three reported appellate cases, one federal and two state, have addressed our situation. None of them agrees with today’s ruling.
In Puente Arizona v. Arpaio , the plaintiffs mounted a facial
cha llenge to two Arizona identity theft laws as preempted by the IRCA.
See 821 F.3d 1098, 1102 (9th Cir. 2016). The first statute prohibited “using the information of another (real or fictitious) person ‘with the intent to obtain employment.’ ” Id. (quotin g Ariz. Rev. Stat. § 13

– 2009). The second statute was an expansion on the general identity theft statute, enacted in order to “also reach employment

- related identity
theft.” Id. The Ninth Circuit applied a presumption against preemption, reasoning that “while the identity theft laws certainly have effects in the area of immigration, the text of the laws regulate for the health and safety of the people of Arizona.” Id. at 1104.
The Ninth Circuit thus concluded that neither statute was field or conflict p reempted on its face by the IRCA. Id. In so holding, the court

5 The first special concurrence relies on Arizona for the proposition that “no state may impose criminal penalties on unauthorized employees.” As I have explained, that is not a holding of the case. Rather, Arizona holds that states may not criminalize the mere act of seeking or holding employment by an unauthorized alien

. Id. at 406

– 09 , 132 S. Ct. at 2505

– 06. The Iowa laws at issue do not do this.52 emphasized that “the identity theft laws are textually neutral

— that is, they apply to unauthorized aliens, authorized aliens, and U.S. citizens
alike.” Id. at 1105. In other words, “one cou ld not tell that the identity theft laws undermine federal immigration policy by looking at the text
itself.” Id. Because the statutes at issue “make it a crime for ‘ any
person ’ to use a false document to gain employment,” the court said that
cases like Arizona are “easily distinguishable” and “do not control here.”
Id. at 1107 (emphasis added). As a result, the court instead focused on the effect of the statutes to determine “if the state encroached on an area Congress intended to
reserve.” Id. at 1106. Considering the statutes were generally applicable to any person who uses another’s identity for any reason

— immigration or nonimmigration

— the court reasoned, Congress could not have intended to preempt the state from sanctioning crimes that prot ect citizens of the state under Arizona’s traditional police powers without intruding on federal immigration policy. Thus, we hold that despite the state legislative history, Congress did not intend to preempt state criminal statutes like the identity the ft laws.
Id. The court emphasized that this was not a case where “the statutory language singles out unauthorized aliens.” Id. at 1107. After the Ninth Circuit weighed in and rejected the facial challenge,
the Puente Arizona litigation continued in distr ict court. On November 22, 2016, in ruling on cross

- motions for summary judgment, the district court held that Arizona’s laws criminalizing identity theft for purposes of obtaining employment were not preempted as applied for the most part.
Puente Ariz. v. Arpaio , No. CV

– 14

– 01356

– PHX

– DGC, 2016 WL 6873294,
at *10

– 11, *16 (D. Ariz. Nov. 22, 2016). The court excepted only the approximately 10 percent of cases where the state had used the Form I

- 9 and attached documents to investigate or prosecute the case. See id. at53

*12

– 13. 6 Last year, in State v. Ochoa

- Lara , the Kansas Court of Appeals held
that a state prosecution of identity theft, based on the unlawful use of another’s social security number to gain employment, was not preempted by the IRCA. 362 P.3d 606, 612 (Kan. Ct. App. 2016), review granted (Oct. 21, 2016). The court emphasized that the laws in question were neutrally worded and prohibited using the personal identification of
another with the intent to defraud in order to receive a benefit. Id. at 611. The court recognized “Kansas’ historic police power to prosecute identity thieves.” Id. The court concluded that “the possible illegal uses of another’s Social Security number are myriad” and “[t]here is nothing in the IRCA that suggests that C ongress intended the comprehensive preemption of the police powers of the State to prosecute all such instances of identity theft.” Id. at 612. Likewise, in State v. Diaz

- Rey , the Missouri Court of Appeals rejected a preemption defense to a forgery charge based on the use of a false social security card to obtain employment. 397 S.W.3d 5, 10 (Mo. Ct. App. 2013). In finding the law not subject to field preemption, the
court reasoned that it was a state law of general applicability that uniformly applies t o all persons as members of the general public, and makes no distinction between aliens and non

- aliens. As a general matter, such laws are not preempted simply because a class of persons subject to federal regulation may be affected

. Id. at 9. The court also concluded that conflict preemption did not apply
because [u]nlike section 5(C) of the Arizona statute, section 570.090 does not criminalize activity that Congress has

6 I discuss the I

- 9 exemption below.54 decided not to criminalize. Rather, as charged in this case, it criminalizes the us e of inauthentic writings or items as genuine with knowledge and intent to defraud. Thus, section 570.090 does not stand as an obstacle to Congress’s purpose in enacting IRCA.
Id. at 10 (citation omitted). In this case, the State charged Martinez with forgery and identity theft in violation of Iowa Code sections 715A.2(1)( c ) and 715A.8(2) (2013). Both charges stemmed from Martinez’s use of Diana Castaneda’s identity
to work at Packers Sanitation. Because Martinez had used the
Castaneda documents to se cure employment, the forgery charge was elevated to a class “D” felony. See id. § 715A.2(2)( a )(4). Furthermore, the identity theft charge was treated as a class “D” felony because earnings statements from Packers Sanitation indicated Martinez had been pa id more than $1000 from January to June 2013. See id. § 715A.8(3). Like the statutes at issue in the Kansas and Missouri cases, both
misdemeanor forgery under Iowa Code section 715A.2 and identity theft
under Iowa Code section 715A.8 are broad

- based, neut ral laws. They cover certain categories of fraudulent conduct and operate in an area of traditional state police power. For example, the earliest Iowa Codes would have criminalized the conduct that Martinez was alleged to have engaged in here. See Iowa Code § 2627 (1851) (relating to uttering forged instruments). Notably, our nation has no federal identity card. Driver’s licenses and nonoperator identification cards are an area of traditional state

concern. See Koterba v. Commonwealth , 736 A.2d 761, 76 5 (Pa. Commw. Ct. 1999) (“[T]he issuance [and denial] of driver’s licenses is a function traditionally exercised by the individual state governments.” (Second alteration in original.)). Iowa has a legitimate state interest in the integrity of its own stat e

- issued forms of identification and avoiding their55

misuse. There is no indication in the IRCA or elsewhere that state prosecutions for use of false state identity documents would undermine a congressional objective such that persons who use those documen ts to obtain work should receive a “hands off” from state criminal law. II. Express Preemption Based on 8 U.S.C. § 1324a(b)(5) Does Not Apply Here. When Martinez began working at Packers Sanitation, she completed a Form I

- 9, titled “Employment Eligibility Verification.” At that time, Martinez provided the Iowa identification card in Diana Castaneda’s name but bearing Martinez’s photo as well as the social security card in Castaneda’s name. Copies of these documents were retained by the employer and obtai ned by DOT in their investigation. Federal law provides with respect to the I

- 9,
Limitation on use of attestation form A form designated or established by the Attorney General under this subsection [the I

- 9] and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of Title 18. 8 U.S.C. § 1324a(b)(5). This language clearly prohibits a state prosecution based on false
statements within the I

- 9 form itself. However, two courts have read the language as not foreclosing state prosecutions for the display of false
documents when the I

- 9 is completed, even if the employer retains copies
of the false documents and attaches them to the I

- 9. In State v. Reynua , the Minnesota Court of Appeals decided that a state perjury prosecution
based on false statements on an I

- 9 was preempted but declined to find preemption of a simple

- forgery charge due to presentation of a false
Minnesota identification card. S ee 807 N.W.2d 473, 480

– 81 (Minn. Ct. App. 2011). The court concluded, “[W]e cannot read this provision so56 broadly as to preempt a state from enforcing its laws relating to its own
identification documents.” Id. The court reasoned, [Section 1324a(b)(5)] does not exhibit a “clear and manifest purpose” to bar enforcement of state laws pertaining to state identification cards. It would be a significant limitation on state powers to preempt prosecution of state laws prohibiting falsification of state

- issued identification cards, let alone to prohibit all use of such cards merely because they are also used to support the federal employment

- verification application.
Id. at 481 (quoting Altria Grp., Inc. v. Good , 555 U.S. 70, 77, 129 S. Ct. 538, 543 (2008)). In Ochoa

- Lara , the Kansas Court of Appeals endorsed this analysis. See 362 P.3d at 610

– 11. The United States District Court for the District of Arizona has read the scope of the prohibition more broadly. It found that 8 U.S.C. § 1324a(b)(5) bars investigatory use, not merely evidentiary use, of the
I

- 9 and attachments in prosecutions other than for the listed federal
crimes. Puente Ariz. , 2016 WL 6873294, at *12

– 13. Hence, the court found that the state was “field preempted from using the Form I

- 9 and accompanying documents for investigations or prosecutions of violations of the Arizona identity theft and forgery statutes.” Id. at *13. In a subsequent opinion, the court went on to hold that “documents presented solely to comply with the federal employment verification system could [not] be used for state law enforcement purposes” even if “they were not physically attached to a Form I

- 9.” Puente Ariz. v. Arpaio , No. CV

– 14

– 01356

– PHX

– DGC, 2017 WL 1133012, at *8 (D. Ariz. Mar. 27, 2017). At the sa me time, the court concluded that “Congress did not intend to preempt state regulation of fraud outside the federal employment verification process.” Id. at *7. And it concluded that state authorities could use the same documents as the basis for a prose cution “if they were also submitted for a purpose independent of the federal57 employment verification system, such as to demonstrate ability to drive or as part of a typical employment application.” Id. at *8. I agree with the views of the Minnesota and Ka nsas courts. “Use” is an inherently ambiguous term. See Arizona v. Inter Tribal Council of Ariz., Inc. , 570 U.S. ___, ___, 133 S. Ct. 2247, 2254 (2013) (describing the verb use as “elastic”). In context, 8 U.S.C. § 1324a(b)(5) establishes an evidentiary bar on the use of I

- 9 paperwork other than in certain enumerated federal prosecutions. If Congress had intended the I

- 9 and
attachments to be totally off

- limits to federal and state agencies other than for the listed federal prosecutions it would have wo rded the statute much differently

— i.e., as a limitation on disclosure. For example, given the Arizona federal district court’s interpretation, it would be unlawful for the FBI to obtain an employee’s I

- 9 and attachments from an employer in
the course of a terrorism investigation of that employee, because the offenses under consideration were not listed in section 1324a(b)(5). That
seems absurd to me. 7
In Chamber of Commerce of the United States v. Whiting , the Supreme Court indicated that § 1324a(b)(5) do es not prohibit an employer from showing that it complied with the I

- 9 process to defend against a state criminal prosecution without using “the I

- 9 form or its supporting documents themselves.” 563 U.S. 582, 603 n.9, 131 S. Ct. 1968, 1982 n.9 (2011). Si milarly, I do not believe § 1324a(b)(5) by its terms prohibits Iowa from prosecuting Martinez for using a false state identification card to obtain employment, so long as it does not rely on

7 The district court’s latest o pinion, in my view, must overcome an additional interpretive obstacle. Section 1324a(b)(5) refers to “information

. . . appended to such form.” 8 U.S.C. § 1324a(b)(5). If the document has been submitted to the employer but not attached to the I

- 9, it ha s not been “appended to such form.”58

the I

- 9 paperwork retained by the employer to do so. And in fact , Martinez concedes that “[t]here probably is not express preemption” in this case based on § 1324a(b)(5). And the court today does not rely on express preemption. Yet, § 1324a(b)(5) highlights another flaw in the majority’s preemption ruling. The fact t hat Congress included a narrow and specific preemption clause in that section limited to the I

- 9 undermines the majority’s view that Congress actually preempted all prosecutions of unauthorized aliens (but only unauthorized aliens) for using false
identiti es to obtain employment. Why write a narrow preemption clause if the entire field was preempted? 8
III. Felony Forgery Is Not Preempted Either. It is easy for me to conclude that federal immigration law does not preempt a prosecution of Martinez for gener al forgery or identity theft. Felony forgery presents a somewhat closer question, however. 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

a uthorized stay or employment in the United States.” See Iowa Code § 715A.2(2)( a )(4). Iowa Code section 715A.2(2)( a )(4) became law in 1996. See 1996 Iowa Acts ch. 1181, § 3. Almost all the changes affected by this legislative package relate to the hiring of unauthorized aliens. See id. § 1

– 4. Section 1 requires employers who actively recruit non

- English speaking residents of other states more than 500 miles away to provide a

8 Additionally, the majority’s suggestion that Martinez would not have needed to commit forgery if it hadn’t been for federal law should be rejected. When Martinez went to work at Packers Sanitation, even if the I

- 9 requ irement never existed, she would have had to give some identity including a social security number for federal and state tax purposes.59 written statement, signed by the employee, that “possession of forged documentation authorizing the person to stay or be employed in the United States is a class ‘D’ felony.” Id. § 1 (codified at Iowa Code § 91E.3(1)( e ) (2013)). Section 2 makes knowing possession of a forged
document a crime. Id. § 2 (codified at Iowa Code § 715A.2(1)( d )). Section 3 adds to the list of documents covered by Class D forgery felony “[a] document prescribed by statute, rule, or regulation for entry into or as evidence of authorized stay or employment in the United States.” Id. § 3 (codified at Iowa Code § 715A.2(2)( a )(4)). Section 4 imposes a civil penalty on an employer who knowingly hires an employee who is not authorized to be employed in the United States or whose documentation evidencing authorized stay or employment is known to be false, subject to the safe harbor in Title 8 U.S.C. § 1324a(b). Id. § 4 (codified at Iowa Code § 715A.2A). The preamble to the legislation describes it as AN ACT relating to the crime of forgery, by prohibiting the knowing possession of forged wri tings, including documents prescribed for entry into, stay, or employment in the United States, and providing criminal penalties and providing civil penalties for employers hiring individuals with forged documents regarding the individuals’ entry into, [st ay], or employment in the United States.
Id. The fiscal note for the legislation estimated that the law would result in 1000 new criminal convictions annually in Iowa, on the theory that “approximately 1,000 deportations of persons apprehended in Iowa occ ur each year and possession of forged documents are applicable to all such deportations.” S.F. 284, 76th G.A., 2d Sess. fiscal note (Iowa 1996). This case of course involves Section 3 of the 1996 legislation. Section 3 is not a facially neutral law. It was written to address unauthorized immigration, and the law piggybacks verbatim on the following federal language:60 Whoever knowingly forges, counterfeits, alters, or falsely makes any

. . . document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such

. . . document prescribed by statute or regulation for entry into or as evidence of authorized stay or empl oyment in the United States, knowing it to be forged, counterfeited, altered, or falsely made

. . . . 18 U.S.C. § 1546(a).
Yet I would conclude that the law does not cross the line set forth
in Arizona . Our legislature did not intrude within an exclusivel y federal domain or criminalize conduct that Congress had opted not to criminalize; instead, it placed a state criminal sanction on top of a federal
criminal sanction in an area that states can regulate. Also, the practical applications of the Arizona law upheld in Puente Arizona and the Iowa law are probably similar. Both cover basically the same conduct. Both would apply to an American citizen’s use of forged documents when seeking employment

— in addition to an unauthorized alien’s use of such
documents

. The majority’s discussion of felony forgery in Part III.D rests on
additional out

- of

- context case quotations. As I’ve already explained at length, Arizona does not bar states from criminalizing conduct that federal immigration law also criminalizes, out side of those areas like alien registration and unlike alien employment where field preemption applies. So Arizona does not help the majority. The majority’s quotations from Valle del Sol Inc. v. Whiting and Georgia Latino are also
taken out of context a nd do not aid the majority’s position. In both instances the laws at issue related to alien harboring and transportation, an area where Congress has fully occupied the field. Valle del Sol Inc. v. Whiting , 732 F.3d 1006, 1012 (9th Cir. 2013); Ga. Latino , 691 F.3d at 1256. That consideration, and only that consideration, prevented the61 states from “layer[ing] additional penalties atop federal law.” Ga. Latino , 691 F.3d at 1267; see also Valle Del Sol Inc. , 732 F.3d at 1027. Layering is not generally proh ibited, though, and we commonly see parallel state and federal criminal laws covering the same misconduct. In the typical case, both sets of laws are equally enforceable.
IV. Conclusion. I accept the representations of defense counsel that defendant
Mart ha Martinez was born in Mexico and brought to this country by her parents when she was eleven years old. I accept the further representations that she has lived in this country for the last twenty years, just wants to work here to make ends meet, and woul d not
consider Mexico her home. But the majority’s ruling will apply to all unauthorized aliens who use a false identity to work in this state, whether they are as sympathetic as Martinez or not. An unauthorized alien who is working under an alias
to avoi d paying taxes or cover up a criminal history will also reap the benefit of today’s decision. At the same time, an American citizen who is just as sympathetic as Martinez will not benefit from today’s decision. Our job should not be to pick winners or lo sers but to apply federal law as given to us by Congress and state law as given to us by the general assembly. 9 I want to close by noting an irony in today’s ruling. According to the majority, federal law preempts criminal fraud committed by an
unauthoriz ed alien only where the purpose of the fraud is to obtain work. Hence, while Martinez cannot be prosecuted for using her false Iowa

9 In my view, we also should not be using our opinions as a platform for criticizing a county attorney. I will leave any response to that criticism to the county attorney himself.62

identification to get herself hired by an Iowa employer, she can be prosecuted for using that same false identification to cash her employer’s paycheck at a bank . When a court decision rests on such a diaphanous distinction, that is another reason to question it. For all the reasons I have stated, I respectfully dissent. Waterman and Zager, JJ., join this dissent.