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, Nebraska, 

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 

noncitizen brought to Iowa as an eleven-year-old child by her parents, 

educated in Iowa public schools, who has lived in Iowa continuously, 

who is a mother of four children who are citizens of the United States, 

and who applied for and was granted deferred action under the 

Department of Homeland Security’s Deferred Action for Childhood 

Arrivals (DACA)1 program, may be prosecuted by State authorities for 

using false documents to obtain federal employment authorization even 

though federal law pervasively regulates employment of undocumented 

noncitizens. The answer to this question is no.

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. 

She attended Muscatine public schools and worked for several different 

employers in Muscatine County.

When she was seventeen years old, Martinez applied for and 

obtained an Iowa driver’s license. She used a birth certificate in the 

name of Diana Castaneda, a person with a social security number, to 

obtain the license. She renewed the license in 2008.

In 2013, Martinez used her fictitious driver’s license and a social 

security card in the same name to obtain employment at Packer 

Sanitation, a business located in Muscatine County. The documents 

were used to obtain what is referred to as I-9 paperwork.

 1Memorandum 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-exercisingprosecutorial-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. Because 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 newly issued 

social security card.

The Iowa Department of Transportation (IDOT), apparently using 

facial recognition software, noted a similarity between her photograph 

taken in 2014 and earlier photographs taken when she obtained her 

driver’s license in 2003 and 2008. As a result, IDOT commenced an 

investigation.

According to the notes of the IDOT investigator, a woman appeared 

at the Iowa City drivers’ license station on May 2, 2003, with a California

birth certificate in the name of Diana Castaneda. 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 an ID and employment authorization card in the name of 

Martha Martinez. The photograph of Martinez, however, appeared to 

match the photograph of Diana Castaneda from March 2, 2003, and 

October 28, 2008.

The investigator determined that wages were being obtained by 

Diana Castaneda at Packer Sanitation. The investigator contacted 
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Packer Sanitation and obtained Diana Castaneda’s I-9, copies of her Iowa 

ID, social security card, and payroll history showing she obtained wages 

in excess of $1000. The investigator contacted immigration authorities 

and learned that Martinez had a valid employment authorization card.

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 Castaneda but did not know her. She 

had been recently working but had quit due to her pregnancy. She 

admitted prior employment under the name and social security number 

of Diana Castaneda. The investigator informed Martinez that he would 

recommend she be charged with identity theft. The investigator thanked 

Martinez for being honest and cooperative.

B. Iowa Criminal Proceedings. The State filed two criminal 

charges against Martinez. Count I alleged the crime of identity theft 

under Iowa Code section 715A.8 (2013). This Code provision states, “A 

person commits the offense of identity theft if the person fraudulently 

uses or attempts to fraudulently use identification information of another 

person, with the intent to obtain credit, property, services, or other 

benefit.” Iowa Code § 715A.8(2). If the value of the credit, property, or 

services exceeds one thousand dollars, the person commits a class “D” 

felony. Id. § 715A.8(3). If the value of the credit, property, or services 

does not exceed one thousand dollars, the person commits an aggravated 

misdemeanor. Id. According to the minutes of testimony, the basis for 

the intent to obtain “credit, property, or services” was employment at 

Packer Sanitation earning wages in excess of $1000.
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Count II alleged the crime of forgery under Iowa Code section 

715A.2(1). This Code provision declares that a person is guilty of the 

crime of forgery if, with intent to defraud or injure anyone, a person 

“[m]akes, completes, executes, authenticates, issues, or transfers a 

writing so that it purports to be the act of another who did not authorize 

that act.” Id. § 715A.2(1)(b). The provision further provides that forgery 

is a class “D” felony if the writing is or purports to be “[a] document 

prescribed by statute, rule, or regulation for entry into or as evidence of 

authorized stay or employment in the United States.” Id. 

§ 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 independent of federal law.

The district court denied the motion to dismiss. According to the 

court, the charges of identity theft and forgery were “state crimes 

independent of Defendant’s immigration status.” In prosecuting 

Martinez, the court stated, the State was not acting to enforce or attack 

federal immigration law. Therefore, Martinez’s prosecution was not 

preempted by federal law.

Martinez sought interlocutory review. We granted the application.
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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). It is also 

based upon the federal government’s inherent power as a sovereign to 

control and conduct relations with foreign governments. Id. As 

demonstrated by an amicus brief in Arizona filed by sixteen nations, 

immigration policy can affect trade, investment, tourism, and diplomatic 

relations for the entire Nation as well as the perceptions and expectations 

of aliens on this country who seek full protection of its law. See Mot. of 

Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican 

Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, 

Panama, Paraguay, Peru and Uruguay for Leave to Join the United 

Mexican States as Amici Curiae in Supp. of Resp’t at 6, Arizona, 567 U.S. 

387, 132 S. Ct. 2492, 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 immigration and international 

relations.

2. Early regulation and plenary authority. The United States 

Supreme Court has observed that the supremacy of national power in 

the general field of foreign affairs—including immigration, naturalization, 

and deportation—is made clear by the United States Constitution. Hines 
8

v. Davidowitz, 312 U.S. 52, 62, 61 S. Ct. 399, 401–02 (1941). Yet, until 

1891, no comprehensive immigration legislation existed, and a number 

of states enacted discriminatory legislation. See Kevin J. Fandl, Putting 

States Out of the Immigration Law Enforcement Business, 9 Harv. L. & 

Pol’y Rev. 529, 530–31 (2015) [hereinafter Fandl]. Responding to 

discriminatory legislation against Chinese aliens, the United States 

Supreme Court in Chy Long v. Freeman, 92 U.S. 275, 280 (1875), and 

Fong Yue Ting v. United States, 149 U.S. 698, 707, 13 S. Ct. 1016, 1019 

(1893), emphasized the need for “absolute and unqualified” power to 

deport aliens in the interest of national sovereignty. Fandl, 9 Harv. L. & 

Pol’y Rev. at 531–32 (quoting Fong Yue Ting, 149 U.S. at 707, 13 S. Ct. at 

1019).

3. Overview of Immigration and Nationality Act. Congress exercised

its power over immigration through enactment of the Immigration and 

Nationality Act (INA) which, along with other enactments, provides a 

“comprehensive federal statutory scheme for regulation of immigration 

and naturalization” and sets “the terms and conditions of admission to 

the country and the subsequent treatment of aliens lawfully in the

country.” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 587,

131 S. Ct. 1968, 1973 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 

353, 359, 96 S. Ct. 933, 935, 938 (1976), superseded by statute, 

Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 

Stat. 3359, as recognized in Chamber of Commerce, 563 U.S. at 590, 131 

S. Ct. at 1975); see 8 U.S.C. §§ 1101–1537.

By way of brief summary, the INA provides criteria by which 

“aliens,” defined as “any person not a citizen or national of the United 

States,” may enter, visit, and reside in the country. 8 U.S.C. 

§ 1101(a)(3); see Lozano v. City of Hazelton, 620 F.3d 170, 196 (3d Cir. 
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 criteria of one of these categories. Lozano, 620 F.3d at 196. 

Certain aliens who have health conditions, have been convicted of certain 

crimes, present security concerns, or have been recently removed from 

the United States are inadmissible. 8 U.S.C. § 1182.

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 admitted, removed from the 

United States.” Id. § 1229a(a)(3). INA removal procedures provide for 

notice, the opportunity to be heard, the opportunity to be represented by 

counsel, and the possibility of discretionary relief from removal including 

postponement of removal, cancellation of removal, or even adjustment of 

status to that of lawful permanent residency. Id. §§ 1229a(c), 1229b.

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 2504; see 8 

U.S.C. §§ 1324a–1324b. The IRCA established “a comprehensive 

framework for ‘combating the employment of illegal aliens.’ ” Arizona, 

567 U.S. at 404, 132 S. Ct. at 2504 (quoting Hoffman Plastic Compounds, 

Inc. v. NLRB, 535 U.S. 137, 147, 122 S. Ct. 1275, 1282 (2002)). Under 
10

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 reasonably appear to be genuine. Id. 

§ 1324a(b)(1)(A)–(D). On the form known as the I-9, employees must also 

make an attestation of their authorized work status. Id. § 1324a(b)(2).

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 purposes 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 seeking or engaging in unauthorized

employment.
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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 lawfully issued to the person, a false 

document, or a false attestation “for the purpose of satisfying a 

requirement” of the federal employment verification system. 18 U.S.C. 

§ 1546(b). Violators of this criminal provision may be sentenced for up to 

five years in prison. Id. Congress also authorized federal criminal 

penalties against a person who uses or possesses an immigration 

document, including one that demonstrates federal work authorization, 

“knowing it to be forged, counterfeited, altered, or falsely made, or to 

have been procured . . . by fraud or unlawfully obtained.” Id. § 1546(a). 

Persons convicted under this statute, in most cases, may be imprisoned 

for up to ten years. Id. In addition to the criminal penalties, Congress 

authorized civil penalties for document fraud involving immigration 

requirements, include the work authorization requirement. 8 U.S.C. 

§ 1324c(a)(1)–(4), (d)(3).

Finally, Congress authorized immigration penalties for persons 

involved in document fraud. For example, Congress authorized removal 

of persons convicted of federal criminal document fraud. Id.

§ 1227(a)(3)(B)–(C); id. § 1324c; 18 U.S.C. § 1546. Further, federal law 

may preclude aliens from becoming a lawful permanent resident if the 

alien was employed while he was an “unauthorized alien.” 8 U.S.C. 

§ 1255(c)(2).

5. Illegal Immigration Reform and Immigrant Responsibility Act. In 

1996, Congress amended the INA by enacting the Illegal Immigration 

Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 

104–208, 110 Stat. 3009 (codified as amended in various sections of 8 
12

U.S.C.). The IIRIRA called for improvements in the employer verification 

system and required that the Attorney General and later the Director of 

Homeland Security to develop pilot programs designed to improve 

employment eligibility confirmation process. See Lozano, 620 F.3d at 

200. Ultimately, only one of the pilot programs, E-Verify, was 

reauthorized and expanded to all fifty states. Id. The use of E-Verify 

rather than the ordinary I-9 process remains voluntary, with a few 

exceptions. Id.

The IIRIRA authorized the Department of Homeland Security to 

enter into agreements with state and local law enforcement agencies to 

enforce federal immigration law. 8 U.S.C. § 1357(g). Under this 

provision, state and local governments may assist federal enforcement if 

(1) there is a written agreement, (2) local cooperating authorities receive 

appropriate training, and (3) local authorities operate under the 

supervision of federal immigration officials. Id.

6. Federal penalties for immigration document fraud. 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 provided in 18 U.S.C. § 1546. In addition, the 

Identity Theft Penalty Enhancement Act imposes more severe 

consequences on those who use social security numbers, credit card

accounts, or other information in connection with a felony, including 

violation of immigration law. 18 U.S.C. § 1028A. However, Congress 

exempted false use of social security numbers for work in certain 

situations from claims of fraud under the Social Security Act. 42 U.S.C. 

§ 408(e).
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7. Discretion in enforcement of immigration laws. Under federal 

immigration laws, discretion is vested in federal officials in two ways. 

Federal immigration law is replete with statutory provisions explicitly 

vesting discretion in the executive branch. See, e.g., Reno v. Am.-Arab 

Anti-Discrimination Comm., 525 U.S. 471, 483–84, 119 S. Ct. 936, 943 

(1999) (stating in “the initiation or prosecution of various stages in the 

deportation process . . . [a]t each stage the Executive has discretion to 

abandon the endeavor”).

Congress has also delegated to the executive branch the 

determination of when a noncitizen may work. 8 U.S.C. § 1324a(h)(3)

(removing from definition of “unauthorized alien” those who the Attorney 

General authorized to be employed even when they are not lawfully 

admitted for permanent residence). The implementing regulations 

provide that an alien without lawful status may still be granted work 

authorization when the administrative convenience gives cases lower 

priority and an alien establishes economic necessity. 8 C.F.R. 

§ 274a.12(c)(14) (2016).

Further, the United States Supreme Court has “recognized on 

several occasions over many years that an agency’s decision not to 

prosecute or enforce, whether through civil or criminal process, is a 

decision generally committed to an agency’s absolute discretion.” 

Heckler v. Chaney, 470 U.S. 821, 831, 105 S. Ct. 1649, 1655 (1985). In 

exercising discretion, the United States Supreme Court has recognized 

that the executive engages in the “balancing of a number of factors which 

are peculiarly within its expertise.” Id. As a result, the cases generally 

recognize that immigration laws vest substantial discretion in the 

executive branch with respect to enforcement. See Ariz. Dream Act Coal.
14

v. Brewer, 855 F.3d 957, 967 (9th Cir. 2017), petition for cert. filed, 85 

U.S.L.W. 3471, (U.S. Mar. 29, 2017) (No. 16–1180).

B. Implementation of Supremacy Clause Through Principles of

Preemption. Under the Supremacy Clause of the United States 

Constitution, “the Laws of the United States . . . shall be the supreme 

Law of the Land . . . any Thing in the . . . Laws of any State to the 

Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Since the days of 

John Marshall, the Supremacy Clause has been interpreted to mean that 

even if a state statute is enacted in the execution of acknowledged state 

powers, state laws that “interfere with, or are contrary to the laws of 

Congress” must yield to federal law. Gibbons v. Ogden, 22 U.S. 1, 211

(1824). The United States Supreme Court has implemented the 

Supremacy Clause through the development of its preemption doctrine. 

Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152, 102 

S. Ct. 3014, 3022 (1982).

The contours of the doctrine of preemption, if sometimes difficult 

to apply, are well established. The United States Supreme Court has 

developed two broad categories of preemption of state law: express and 

implied. Id. at 152–53, 102 S. Ct. at 3022. Express preemption occurs 

when the federal statutory text clearly provides that congressional 

authority is exclusive. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 

S. Ct. 1305, 1309 (1977). When express preemption is implicated, close 

examination of statutory language is ordinarily required to implement 

congressional intent. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 

664, 113 S. Ct. 1732, 1737 (1993).

In addition, the Supreme Court has recognized two types of implied 

preemption—field preemption and conflict preemption—which arise even 

when there is no express provision in the federal statute preempting local 
15

law. Oneok, Inc. v. Learjet, Inc., 575 U.S. ___, ___, 135 S. Ct. 1591, 1595

(2015). Field preemption arises when Congress has enacted a 

comprehensive scheme. Pac. Gas & Elec. Co. v. State Energy Res. 

Conservation & Dev. Comm’n, 461 U.S. 190, 203–04, 103 S. Ct. 1713, 

1722 (1983). In these cases, congressional intent to preempt can be 

inferred from a framework of regulation “so pervasive . . . that Congress 

left no room for the States to supplement it” or where there is a “federal 

interest . . . so dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject.” Rice v. Santa 

Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947).

Conflict preemption occurs when a state law conflicts with a 

federal provision. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111 

S. Ct. 2476, 2482 (1991). There are two variations of conflict 

preemption. Conflict preemption occurs when “compliance with both 

federal and state regulation is a physical impossibility.” Fla. Lime & 

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43, 83 S. Ct. 1210, 

1217 (1963). Conflict preemption also is imminent whenever two 

separate remedies are brought to bear on the same activity. Wis. Dep’t of 

Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286, 106 

S. Ct. 1057, 1061 (1986).

Conflict preemption also occurs when a state law is an obstacle to 

the accomplishment of a federal purpose. Hines, 312 U.S. at 66–67, 61 

S. Ct. at 404. In this regard, the United States Supreme Court has said,

“What is a sufficient obstacle is a matter of judgment, to be informed by 

examining the federal statute as a whole and identifying its purpose and 

intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 

373, 120 S. Ct. 2288, 2294 (2000).
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C. Application of Preemption Principles to Immigration Law.

1. Overview of United States Supreme Court preemption precedent

in immigration cases. 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 

Federal Alien Registration Act. Id. at 60, 61 S. Ct. at 400. The Hines

Court noted that “the regulation of aliens is so intimately blended and 

intertwined with responsibilities of the national government that where it 

acts, and the state also acts on the same subject, ‘the act of [C]ongress 

. . . is supreme.’ ” Id. at 66, 61 S. Ct. at 403–04 (quoting Gibbons, 22 

U.S. at 211). The Hines Court canvassed the various approaches to 

preemption, noting that none of the formulations or expressions 

“provides an infallible constitutional test or an exclusive constitutional

yardstick.” Id. at 67, 61 S. Ct. at 404. And while the federal law did not 

have an express preemption provision, the Hines Court concluded that 

the Pennsylvania law “stands as an obstacle to the accomplishment and 

execution of the full purposes and objectives of Congress.” Id.

A more recent immigration case dealing with federal preemption is 

De Canas, 424 U.S. 351, 96 S. Ct. 933. In De Canas, the Supreme Court 

considered whether federal law prohibited California from enacting a 

statute which forbade an employer from knowingly employing an alien 

who was not entitled to lawful residence in the United States if such 

employment would have adverse effect on lawful resident workers. Id. at 

352–53, 96 S. Ct. at 935. A California appellate court held that the 

statute was unconstitutional, noting that “in the area of immigration and 

naturalization, congressional power is exclusive.” De Canas v. Bica, 115 

Cal. Rptr. 444, 446 (Ct. App. 1974). The California court further held 

that state regulatory power was foreclosed when Congress “as an 
17

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 employers. Id.

The De Canas Court held that the California statute was not 

preempted by the INA. 424 U.S. at 365, 96 S. Ct. at 941. The Court 

concluded preemption could not be required because “the nature of the 

regulated subject matter permits no other conclusion” nor because 

“Congress has unmistakably so ordained.” Id. at 356, 96 S. Ct. at 937 

(quoting Fla. Lime, 373 U.S. at 142, 83 S. Ct. at 1217). The Court was 

unwilling to presume that in enacting the INA, Congress intended to oust 

state authority to regulate the employment of immigrants in a manner 

consistent with federal law. Id. at 357, 96 S. Ct. at 937. The Court 

declined to consider whether the California statute was “an obstacle to 

the accomplishment and execution of the full purposes and objectives of 

Congress” because the issue was not addressed below. Id. at 363, 96 

S. Ct. at 940 (quoting Hines, 312 U.S. at 67, 61 S. Ct. at 404). In light of 

the vibrancy of obstacle preemption in immigration law, De Canas thus 

was a limited precedent from the outset.

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 

collective bargaining. 535 U.S. at 140, 122 S. Ct. at 1278. In a battle 

between federal agencies, the Supreme Court held that a National Labor 

Relations Board remedy for an illegal alien would “unduly trench” upon

the IRCA. Id. at 151, 122 S. Ct. at 1284. Although not a preemption 

case, Hoffman Plastic declared that “combating the employment of illegal 

aliens . . . [is] central to ‘[t]he policy of immigration law.’ ” Id. at 140, 122 
18

S. Ct. at 1278 (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 

U.S. 183, 194 n.8, 112 S. Ct. 551, 558 n.8 (1991)).

The most recent and most important United States Supreme Court 

case involving preemption in the context of immigration and employment 

is Chamber of Commerce, 563 U.S. 582, 131 S. Ct. 1968. In Chamber of 

Commerce, the Court considered a challenge to an Arizona law which 

allowed for the suspension and revocation of business licenses for 

employing illegal aliens and required all employers to verify the 

employment status of all employees using an internet-based system, EVerify. Id. at 587, 131 S. Ct. at 1973. Unlike De Canas, which involved 

a preemption claim under the INA, the Chamber of Commerce case

involved preemption under the IRCA. Id. at 588–89, 131 S. Ct. at 1974. 

The Chamber of Commerce Court ruled, however, that the Arizona 

regulation was within a “savings clause” of the IRCA, which provided that 

federal immigration law preempts “any State or local law imposing civil or 

criminal sanctions (other than through licensing and similar laws) upon 

those who employ . . . unauthorized aliens.” Id. at 590, 611, 131 S. Ct. 

at 1975, 1987 (quoting 8 U.S.C. § 1324a(h)(2)).

The last case is Arizona, 567 U.S. 387, 132 S. Ct. 2492. In 

Arizona, the United States challenged four provisions of an Arizona 

statute dubbed the Support Our Law Enforcement and Safe Neighbor’s 

Act. Id. at 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 requirements a state misdemeanor. Id. 

Another provision made it a misdemeanor for an unauthorized alien to 

seek or engage in work in the state. Id. at 393–94, 132 S. Ct. at 2497–

98. Two other provisions gave arrest authority and investigative duties 
19

with respect to certain aliens to state and local law enforcement. Id. at 

394–95, 132 S. Ct. at 2498.

Justice Kennedy delivered the opinion of the Court. 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 immigration 

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 immigration officials.” Id. Justice Kennedy 

explained,

Discretion in the enforcement of immigration law 

embraces immediate human concerns. Unauthorized 

workers trying to support their families, for example, likely 

pose less danger than alien smugglers or aliens who commit 

a serious crime. The equities of an individual case may turn 

on many factors, including whether the alien has children 

born in the United States, long ties to the community, or a 

record of distinguished military service.

Id.

Justice Kennedy recognized, 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 challenged 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 or 
20

carry an alien registration document in violation of federal law. Id. at 

399–400, 132 S. Ct. 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 the punishment for noncompliance. It was designed 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 foreclosed 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 law were 

enforced, Arizona would “have the power to bring criminal charges 

against individuals for violating a federal law even in circumstances 

where federal officials in charge of the comprehensive scheme determine 

that prosecution would frustrate federal policies.” Id. at 402, 132 S. Ct. 

at 2503. Further, Justice Kennedy noted that the penalties for violation 

of the Arizona law ruled out probation as a possible sentence and 

eliminated the possibility of a pardon, thus conflicting with the plan that 

Congress put in place. Id.

Justice Kennedy next turned to the provision 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 upset “the balance struck by the [IRCA] and must be 
21

preempted as an obstacle to the federal plan of regulation and control.” 

Id.

Justice Kennedy recognized that in De Canas, the Court had held 

the federal government had expressed no more than “a peripheral 

concern with [the] employment of 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 when aliens sought or engaged in unauthorized work. Id. 

While Justice Kennedy 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.; see 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 

preemption provisio[n] does not bar the ordinary working of conflict 

preemption principles’ or impose a ‘special burden’ that would make it 

more difficult to establish the preemption of laws falling outside the 
22

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 careful 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 conflict is in “the method of 

enforcement” and that “[c]onflict in technique 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 believe . . . [the

person] has committed any public offense that makes [him] removable 

from the United States.” Id. (quoting Ariz. Rev. Stat. Ann. § 13-

3883(A)(5)). After canvassing federal law related to removal, Justice 

Kennedy observed the Arizona statute gave state officers even greater 

authority to arrest aliens on the basis of possible removability than 

Congress gave to trained federal immigration officers. Id. at 408–09, 132 

S. Ct. at 2506. The state authority could be exercised without any input 

from the federal government regarding whether an arrest is warranted in 

a particular case. Id. This, according to Justice Kennedy, “would allow 

the State to achieve its own immigration policy.” Id.

Justice Kennedy further reasoned that allowing state authorities to 

determine whether an alien should be detained for being removable

violates the principle that “the removal process is entrusted to the 
23

discretion of the Federal Government.” Id. Authorizing state and local 

officials to interfere with this discretion “creates an obstacle to the full 

purposes and objectives 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)). Further, 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 database 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 closed his opinion with a melodious endorsement 

of the beneficial aspects of immigration. 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 deserts to come here.” Id.
24

2. Application of preemption principles to immigration law by lower 

federal courts. After Arizona, lower federal courts have grappled with 

federal preemption questions involving immigrants and employment. 

The closest precedent to the case before us arises from the state of 

Arizona.

In Puente Arizona v. Arpaio, plaintiffs attacked two Arizona statutes 

which criminalized 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 takes . . . or uses any personal identifying information 

. . . of . . . [a]nother 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 statute 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 

enforcement of the statutes on preemption grounds. Id. at 869. The 

court recognized that the statutes were facially neutral and applied to 

immigrants and nonimmigrants alike. Id. at 854. 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 court
25

determined that a primary purpose and effect of the statutes was to 

impose criminal penalties on unauthorized aliens who sought or engaged

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 “unauthorized-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 plaintiffs identified a 

narrower field, namely, “unauthorized-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 the 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 had expressly limited states use of federal employment verification 

documents. Id. at 857; see 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 considering conflict 

preemption, direct conflict between federal law and state law is 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 congressional 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 conflict is imminent whenever “two separate remedies are brought to 

bear on the same activity.” Id. (quoting Gould Inc., 475 U.S. at 286, 106 

S. Ct. at 1061). As a result, the 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. at 1108. The Ninth Circuit came to this 

conclusion because 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. CV14-01356-PHX-DGC, 2016 WL 6873294, at *1 (D. Ariz. Nov. 22, 2016). 

The court found that Congress preempted “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 court 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 

other immigration benefits. Id. at *13. But, the court reasoned, to the 

extent state law imposed penalties on fraud committed outside the I-9 

process, the state penalties did not “layer additional consequences on top 

of federal penalties because the federal penalties [did] not address non-I9 conduct.” Id. The court 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 *14.

Another case arising out of Arizona dealt 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 

Congress’s intent that the executive branch possess discretion to 

determine when citizens work in the United States was plausible. 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 practical 
28

matter, the ability to drive is a virtual necessity for people in Arizona who 

want to work. Id. The court emphasized it did not matter that the state’s 

policy did not formally prohibit DACA recipients 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 Executive’s determination, backed by a delegation 

of Congressional authority, that DACA recipients throughout the United 

States may work—then the [state’s] policy is preempted.” Id. at 1063. 

The court emphasized that state law “is preempted whenever 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 permanent 

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. South 

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 522. 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 

immigration documents, the presumption against preemption did not 

apply. Id. The Fourth Circuit further stressed,
29

As with other immigration-related measures, 

prosecution for counterfeiting or using federal immigration 

documents is at the discretion of the Department of Justice 

acting through the United States Attorney, and allowing the 

state to prosecute individuals for violations of a state law 

that is highly similar to a federal law strips federal officials of 

that discretion.

Id. at 532–33. Concluding that Congress had occupied the field, the 

Fourth Circuit noted that because enforcement of federal antifraud 

statutes involved 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 purposes and objectives of 

Congress.” Id. (quoting Hines, 312 U.S. at 67, 61 S. Ct. at 404).

3. Summary of general principles of preemption in the field of 

modern immigration law. 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 recognition of broad 

federal control over nearly the entire field of immigration. Fandl, 9 Harv. 

L. & Pol’y Rev. at 532.

The expansive scope of federal preemption doctrine in the 

immigration field recognizes, among other things, the role of 

discretionary enforcement. Discretion has been baked into the cake of 

immigration law for many years through congressional enactment and 

caselaw. State law regulatory schemes that interfere with the systematic 

implementation of federal enforcement discretion present an obstacle in 

one of the main purposes of federal immigration policy: to speak with one 

voice on immigration matters. For this reason, state mirror-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 

demonstrated an ability to identify 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 federal control of the underlying activities. 

D. Application of Preemption Principles to Iowa’s Forgery 

Statute. Iowa Code section 715A.2(2)(a)(4) is preempted on its face 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 authorized stay or employment 

in the United States.” Iowa Code § 715A.2(2)(a)(4). This 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 2502. 

Further, it 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); see Ga. Latino All., 691 F.3d at 

1267 (finding a Georgia statute, which “layer[ed] additional penalties 

atop federal [immigration] law,” preempted). As noted by the United 

States Supreme Court, under such mirror-image enforcement “the State 

would have the power to bring criminal charges against individuals for 
31

violating a federal law even in circumstances where federal officials in 

charge 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 Under Iowa’s Identity Theft Statute.

1. Facial preemption. Unlike Iowa Code section 715A.2(2)(a)(4), 

Iowa’s identity theft statute, Iowa Code section 715A.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 crime 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 law 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 preemption as applied to Martinez. While the identity theft 

statute is not preempted in all its applications, that is not the end of the 

analysis. As noted in Gade v. National Solid Waste Management 

Association, a statute “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 by 
32

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 

State’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.

The 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 aliens from obtaining employment.

To the extent federal 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. § 1324c; 18 U.S.C. § 1546. These 

multiple sanctions establish a system that can 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 State in this case cannot prosecute Martinez for identity theft related 
33

to false documentation supplied to her employer 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 of 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 allembracing 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 preemption as applied to Martinez. We also conclude 

that enforcement of Iowa’s identity theft statute is conflict preempted in 

this case. Any prosecution under the Iowa identity theft statute 

frustrates congressional 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 

enacted 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 the 
34

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 varied. Federal officials often rely upon 

unauthorized aliens to build criminal cases involving 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. As Justice Kennedy noted in Arizona, 

“Discretion in the enforcement of immigration law embraces immediate 

human concerns. Unauthorized workers trying to support their families, 

for example, likely pose less danger than . . . aliens who commit a 

serious crime.” 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 child, an illegal entry for which 
35

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 citizens 

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 person who in good faith responded to their invitation to 

come out of the shadows for deferred action. See Brewer, 757 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 

prosecutorial discretion were permitted, the harmonious system of 

federal immigration law related to unauthorized employment would 

literally be destroyed.

Allowing Iowa to enforce its identity theft statute in the context of 

the employment of an unauthorized alien conflicts 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 discretion in a manner consistent with the established 
36

priorities of the administrations 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 immigration 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 other 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 

“exclusively 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 employment. 

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 “with 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 prosecuted 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 job 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 state 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 Constitution. 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 

prohibition 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 face 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 wages 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, 

which 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 law 
40

interferes with the efforts of Congress to regulate matters governing 

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 unpersuasive 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 “forgery . . . 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 embraces 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 or 
41

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 police 

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 seventeen 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 Action 

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 country 

 2Memorandum 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-exercisingprosecutorial-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, Martinez 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 measures, 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 procedural 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 performance 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. 1436, 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 government 

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 the 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]dentity 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 persons 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 precluding 
46

the states from 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 unlawful 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 purpose 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 

identification 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 of 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 en
47

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 decision 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 Coalition, 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 DACA, 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 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-exercisingprosecutorial-discretion-individuals-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/Humanitari
48

an/Deferred%20Action%20for%20Childhood%20Arrivals/DACA-toolkit.

pdf (last visited June 2, 2017).

Thus, under DACA, state-law convictions for identity 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 so 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 

discretion” 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. 

 3In 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 (2012). 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 violation 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, 

solicit 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 (1941)). 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, 132 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 already a federal crime, the federal 
50

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 

any 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 choice” 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 

method 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 

 4The first special concurrence conflates this part of the Supreme Court’s 

decision 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 

“holding . . . 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 

Arizona. 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 the 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 

challenge 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. (quoting 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 preempted on its face by the IRCA. Id. In so holding, the court 

 5The 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 could 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 protect 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 theft 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 district 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. at 
53

*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 Congress 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 to 

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 

 6I discuss the I-9 exemption below.
54

decided not to criminalize. Rather, as charged in this case, it 

criminalizes the use 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 secure 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 paid 

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, neutral 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, 765 (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 state-issued forms of identification and avoiding their 
55

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 documents 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 obtained 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. See 807 N.W.2d 473, 480–81 (Minn. Ct. 

App. 2011). The court concluded, “[W]e cannot read this provision so 
56

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 same 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 prosecution 

“if they were also submitted for a purpose independent of the federal 
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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 Kansas 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 worded 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) does 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). Similarly, 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 

 7The district court’s latest opinion, 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 has 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 that 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 

identities 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 general 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 

authorized 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 

 8Additionally, 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 requirement 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 writings, 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, [stay], 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 occur 

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 employment 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 exclusively 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, outside 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 and 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 the 
61

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 prohibited, 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 

Martha 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 would 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 avoid 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 losers 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 

unauthorized alien only where the purpose of the fraud is to obtain work. 

Hence, while Martinez cannot be prosecuted for using her false Iowa 

 9In 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.