Introduction

On October 16, the U.S. Supreme Court the Court will hear argument in Kansas v. Garcia, Dkt. No. 17-834. [1]  The Kansas Supreme Court opinion is reported at 306 Kan. 1113, 401 P.3d 588 (2017).  The case involves the preemptive effect of a portion of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (“IRCA”), on state identity theft laws.

IRCA authorized the Attorney General to establish a verification system for employers to verify potential employees identities and eligibility for employment given their immigration status.[2]    Employers must require employees to complete verification documents, particularly the I-9, and use the verification system to ensure that hirees are permitted to work in the United States.[3]  When enacting IRCA Congress also expressed concern that “verification information could create a ‘paper trail’ resulting in the utilization of this information for the purpose of apprehending undocumented aliens.” ‘H.R. Rep. 99-682(III) (1986) at 8–9; see, Kansas v Garcia, 306 Kan. at 1129, 401 P.3d 598.   Accordingly, Congress included in IRCA the following provision:

A form designated or established by the Attorney General under this subsection 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).[4]

Does section 1324a(b)(5) preclude state prosecution under state identity theft statutes only when the defendant supplies false information on an I-9 form?  Does section 1324a(b)(5) preclude prosecution of aliens’ provision of false information on any forms used to secure employment, including not only the I-9 form, but also W-4 tax withholding forms, inter alia?  Or even more broadly, does section 1324(b)(5) preclude prosecution under state identity theft statutes for any information the defendant included on an I-9 form, for instance to obtain a bank loan, even though provision of the information was unrelated to securing employment?

Kansas v. Garcia may appear to be an immigration case, requiring the Court to reconcile the immunity Congress sought to confer by enacting section 1324a(b)(5) with state identity theft statutes.[5]  (Indeed, seemingly the Court is revisiting a preemption issue addressed in Arizona v. U.S., 567 U.S. 387 (2012).)  But lurking near the surface is a dispute over preemption analysis, namely the role of textualism and the scope of the presumption against preemption.  Resolution of such methodological issues may have implications far beyond the immigration context.

Kansas v. Garcia: Tying the Kansas Supreme Court in Knots

Kansas v. Garcia arose out of a Kansas identity theft prosecution.  Garcia used a false social security number in securing employment at a restaurant despite his undocumented status.  306 Kan. at 1114; 401 P.3d at 590.  After deciding to hire Garcia, the restaurant sent him various employment forms to complete.  306 Kan. at 1115; 401 P.3d at 591.  Garcia used the false social security number in completing the both I-9 and W-4 forms sent to him.

The State did not base its prosecution on Garcia’s I-9 form.  306 Kan. at 1114; 401 P.3d at 590.  But Garcia argued that federal law also barred prosecution based on his W-4 form, given that he had transferred the information on the I-9 to the W-4.  Id.  The trial judge rejected that argument.  Id.  A jury convicted Garcia of fraud and identity theft.  306 Kan. at 1116; 401 P.3d at 591.

A divided Kansas Supreme Court held that section 1324a(b)(5) expressly preempted Kansas’ identify theft statute, as applied to Garcia’s conduct.  The majority noted that section 1324a(b)(5) “explicitly prohibited state law enforcement use not only of the I–9 itself but also of the ‘information contained in’ the I–9.”  306 Kan. at 1130; 401 P.3d at 599 (emphasis in original).  The State could not prosecute an unauthorized alien for using false Social Security card information merely by it avoiding reliance upon the I–9.  Id.  The majority explained: “A State may not evade the pre-emptive force of federal law by resorting to creative statutory interpretation or description at odds with the statute’s intended operation and effect.”  Id. (quoting Wos v. E.M.A., 568 U.S. 627, 636 (2013)).

Justice Luckert concurred separately. She noted, citing Arizona v. United States, 567 U.S. at 406, that nothing in IRCA’s text expressly preempts “State laws imposing civil or criminal sanctions on prospective or actual employees.”  Kansas v. Garcia, 306 Kan. at 1132; 401 P.3d at 600 (Luckert, J. concurring).  The majority itself had categorized section 1324a(b)(5) as “an effective express preemption provision.”  Id.  (emphasis added).  To her, an express provision that merely “effectively” preempts state law must be analyzed under the implied preemption doctrine.  Id.

Justice Luckert also highlighted the breadth of the majority’s textualist reading of section 1324a(b)(5).  Id. at 1134; 401 P.3d at 601.  The majority’s reading precluded any state from prosecuting an undocumented alien for using the false identity relied upon to secure employment for other additional unrelated purposes, such as securing loans, credit cards, banking privileges, or a variety of other benefits.  Id.  The majority’s reading also precluded prosecution of citizens or long term permanent residents, people who can legally work, from using a stolen identity to obtain employment that they could not otherwise obtain.  Id.[6]

In Justice Luckert’s view, both field preemption and conflict preemption precluded Garcia’s prosecution.  With respect to field preemption, Congress had establishing a comprehensive statutory scheme governing undocumented aliens’ employment, thus occupying that “field.”  306 Kan. at 1135-36; 401 P.3d at 602.  This precluded Kansas from prosecuting Garcia, an unauthorized alien, for identity theft related to provision of false documentation to his employer.  306 Kan. at 1136; 401 P.3d at 602-03.  Conflict preemption also barred the use of Kansas’ identity theft statute under the circumstances presented in Garcia, because such prosecutions “frustrate[] congressional purpose[s] and provide[] an obstacle to the implementation of federal immigration policy by usurping federal enforcement discretion [regarding] unauthorized employment of aliens.”  306 Kan. at 1136; 401 P.3d at 603.

Justice Biles, one of two dissenters, accused the majority of reading section 1324a(b)(5) too literally. 306 Kan. at 1139; 401 P.3d at 604.  While he found Justice Luckert’s conclusion that field or conflict preemption precluded the prosecution appealing, in the end the presumption against preemption carried the day for him.  306 Kan. at 1141-42; 401 P.3d at 606.

Justice Stegall, the other dissenter, questioned whether section 1324a(b)(5), as interpreted by the majority, was constitutional.  306 Kan. at 1143; 401 P.3d at 606.  He doubted that Congress’ enumerated powers extended to prohibiting states from basing prosecutions for state criminal offenses upon any information that can also be found on a federal I–9 form.  Such a power would destroy the delicate federal-state balance enshrined in the Constitution.

Textualism and the Presumption Against Preemption

The “Confident” Textualist’s Dilemma

Kansas v. Garcia may present a dilemma for what one might call the “confident textualist.”  The confident textualist sees the ordinary meaning of words together with rules of grammar and syntax as providing a definitive interpretation in most circumstances.  And when the text is clear (or at least “clear enough”) upon “a careful examination of the ordinary meaning and [statutory] structure of the law itself . . . , judges must stop.”  Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356, 2364 (June 24, 2019).  Thus, even if resort to statutory purposes or extrinsic evidence is permissible to resolve an ambiguity, the confident textualist rarely has cause to do so because so much of statutory text is clear (or, again, at least clear enough).  See, Chris Walker, Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference, 36 YALE J. ON REG.: NOTICE & COMMENT (June 22, 2018) .[7]  The Justices of the Kansas Supreme Court espoused a textualist philosophy in reaching their conclusion largely on what they viewed as “the plain meaning” of the language.  Kansas v. Garcia, 306 Kan. at 1124; 401 P.3d at 595.[8]

Many confident textualists also appear to be devotees of a relatively robust version of federalism.  Bernard Bell, On the Supreme Court Docket — Guido v. Mt. Lemmon School District: Numerosity Requirements in the ADEA and Other Employment Discrimination Statutes (Part I) 36 YALE J. ON REG.: NOTICE & COMMENT (May 10, 2018).  In preemption doctrine, this takes the form of the presumption against preemption.  Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).[9]  Indeed, in the context of alien employment the Court cited the presumption in concluding that state laws prohibiting aliens from employment could co-exist alongside federal laws on the same subject. De Canas v. Bica, 424 U.S. 351, 356-63 (1976).  In Kansas v. Garcia, a jurist might indeed wonder about the apparent breadth of section 1324a(b)(5)’s key language, and rely on a presumption against preemption to at least conclude that Congress did not intend to preempt generally-applicable state law regarding unauthorized use of false information to obtain goods, services, or benefits unrelated to employment.

The Kansas Court’s Answer to the Dilemma

The Kansas Supreme Court majority had an answer to this dilemma, the presumption against preemption applies at most with respect to an implied preemption analysis, never with respect to express preemption arguments.[10]  The majority cited Justice Thomas’ dissenting opinion in Altria Group., Inc. v. Good, 555 U.S. 70, 102–03 (2008), for himself and Justices Roberts, Scalia, and Alito, in support of that proposition.[11]  There Justice Thomas had noted that after its 1992 decision in  Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992), the Court had applied the presumption only intermittently in express preemption cases, and argued that Court should employ only ordinary rules of statutory construction when analyzing express preemption.   Accord, Puerto Rico v. Franklin California Tax-Free Trust, — U.S. —, 136 S.Ct. 1938, 1946 (2016)(Thomas, J.).[12]

Perhaps the Kansas Supreme Court’s statement that the presumption against preemption should not apply to an express preemption analysis so long as “the language of the congressional enactment at issue is clear,” was simply an awkward statement of a clear statement rule, namely that a statute is not preempted unless Congress clearly expresses its intent to do so.  But if so, the majority’s statement misses the mark.  Granted, for jurists who believe text always yields a reasonably clear answer, there is no difference between a clear statement rule and one that the presumption against preemption does not apply in express preemption cases.  But to the rest of us, non-confident textualists and non-textualists alike, there is a difference when Congress seeks to resolve preemption by express language, but that statutory language is nevertheless ambiguous.  Under a plain meaning approach, such a statute would not have preemptive effect when it does not clearly mandate preemption; under an approach that makes the presumption against preemption entirely irrelevant, the preemptive effect will turn on which of several interpretations of ambiguous text the Court finds most natural.  As in Kansas v. Garcia, that determination may favor the reading that has the broadest preemptive effect.

Assessing the Kansas Court’s Answer to the Dilemma

If the Kansas Supreme Court’s statement is not merely an inartful rendition of a “plain statement” rule, why should the presumption against preemption not apply in express preemption cases, while continuing to apply in implied preemption cases?[13]  Of course, when the proper result is “clear,” regardless of whether it is based on text or a broader consideration of the objectives of the federal statute, the presumption should not deter the Court from adopting the clearly mandated result.

Text can be just as ambiguous as the implications to be drawn from an examination of a statute’s purposes.[14]  Thus, in the case of textual ambiguity, it is not clear why the presumption against preemption should be viewed as irrelevant in choosing between two plausible interpretations.  Indeed, we apply the rule of lenity to criminal statutes, an area in which interpretation rests more heavily on text, to make a choice between two plausible interpretations of the statutory text.[15]  And with respect to the “strong presumption that Congress intends judicial review of administrative action,” where “a statutory provision expressly prohibits judicial review, the presumption dictate[s] that such a provision be read narrowly.”  In other words, “[w]hen a statute is ‘reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.’” American Chem. Lab. Assn v. Azar, — F.2d —, 2019 WL 3418460 (D.C. Cir. July 30, 2019)(quoting Kucana v. Holder, 558 U.S. 233, 251 (2010), which in turn quoted Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, (1995)).[16]

Moreover, even written language is sometimes broader than the drafter intends.  This is often a problem with statutes legislators draft with a particular set of circumstances in mind, but employ general language which has an unintended scope.[17]  And such a problem is quite likely to occur in the preemption context, where state laws that Congress did not envision may be adopted or states may enforce laws in ways that Congress did not anticipate.[18]  We can perhaps be a bit more confident that Congress “means what it says” when the statutory language applies to circumstances of which the enacting Congress would have been well aware.

But perhaps for structural reasons statutory text tends to be more protective of the states’ anti-preemption interest.  After all, Representative and Senators are posited as having their state’s interest in mind when adopting legislation.  Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM .L. REV. 543 (1954).  (Of course that theory has been subject to attack).[19]  This is the rationale for applying a federalism clear statement rules.  By requiring such an explicit legislative statement when Congress seeks to significantly alter the federal-state balance, the Court seeks to ensure that the “political protections” of federalism “kick in.”  Gregory v. Ashcroft, 501 U.S. at 464.[20]

But federalism’s political protections  certainly appear to have been absent when Congress crafted section 1324a(b)(5), and it is far from clear that the text of federal statutes systematically offers the maximum possible protection against preemption.  In any event, even if members of Congress desire to protect state prerogatives when crafting preemption provisions, given the large element of prophecy inherent whenever those provisions must be applied to unanticipated future events, congressional drafters’ efforts will often fail.

Moreover, if the presumption against preemption applies differentially, based on the existence of an express preemption provision, the courts may have to distinguish provisions that qualify as preemption provisions from those that do not.  Justice Luckert’s concurring opinion raises such an issue.  Noting the specific phrasing of section 1324a(b)(5), she concluded that it was not a preemption provision.  She explained that although the United States Supreme Court has never required “magic words” identifying express preemption provisions, “the Court has only applied the express preemption label when the statutory language or title has included terms like ‘supersede,’ ‘preempt,’ or ‘preemption,’ or when the statutory language has explicitly prohibited a state or local entity from enacting or enforcing a specified type of law.”  Kansas v. Garcia, 306 Kan. at 1132-33; 401 P.3d at 600-01 (Luckert, J. concurring).[21]  Section 1324a(b)(5) included no such words and did not purport to prohibit any state or local jurisdiction from enacting or enforcing a particular type of law.  Indeed, the language stands in stark contrast to section 1324a(h)(2), entitled “preemption:” The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

Justice Luckert’s “field” and “obstacle” preemption analyses seem far more convincing and focused on the appropriate considerations than the textual analysis in both the majority opinion and the Biles dissent.  Not confined solely by a textual analysis, she could properly analyze the scope of the respective federal and state interests to arrive at a sensible solution, one that reserves to the federal government combating unauthorized aliens’ fraudulent efforts to seek employment t, while permitting the states to focus on identity theft outside that limited context.

Did the Kansas Supreme Court Simply Do Bad Textualist Interpretation?

Of course, the confident textualists’ response to all this may be that the Kansas Supreme Court majority poorly applied the textualist methodology, i.e., the Court was overly literal.  A poor application of textualism casts no more doubt on the textualism than a poor application of any other methodology would cast on the methodology itself.

The U.S. Supreme Court’s confident textualists might interpret the section 1324a(b)(5) extremely narrowly, concluding that it precludes only state prosecution based on the submission of I-9 forms to employers.  See Kansas v. Garcia, 306 Kan. at 1139; 401 P.3d at 604  (Biles, J., concurring).  Of course, such an interpretation does render superfluous the phrase “any information contained in . . . such form.”

Or the Court’s confident textualists might rely on a structural analysis of IRCA, the absurdity canon,[22] or the avoidance canon, i.e., that statutes should be construed to avoid constitutional questions,[23] to at least reject the Kansas Supreme Court’s interpretation.  Section 1324a(b)(5) is a part of IRCA’s employment provisions,  Whatever the breadth of the language employed, it could hardly be supposed that it applied outside the context of unauthorized alien’s efforts to gain employment.  Moreover, the absurdity canon could be invoked — it is difficult to understand why Congress would preempt state prosecution for fraud that did not involve unlawful employment, some of which the federal government might not even be able to prosecute.[24]  Indeed, the provision limits the federal government’s prosecution of aliens who use false identities to secure credit and other benefits except for violation of the five statutes listed in section 1324a(b)(5).[25]  The avoidance canon could also be used to avoid adopting the Kansas Supreme Court’s interpretation of section 1324a(b)(5).  Justice Stegall argued that if the statute really meant what the majority said it did, the statute would arguably exceed Congress’ powers.[26]  Granted, the breadth of the federal government’s powers under the Commerce Clause and its inherent powers over immigration make it unlikely that such an argument would prevail.

Conclusion

Perhaps the Court will simply consider Kansas v. Garcia an immigration case, rather than an ocassion to revisit preemption doctrine in general.  If so, it can perhaps avoid a foray into the methodological issues raised by the Kansas Supreme Court’s opinion.  But if not, the U.S. Supreme Court’s opinion may have broader implications for preemption analysis.

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[1] The Court granted certiorari on March 18, 2019, limited to Question 1 presented by the petition and a second question formulated by the Court itself: “whether the Immigration Reform and Control Act impliedly preempts Kansas’s prosecution of respondents.”

[2] The Court has described IRCA’s employment provisions as “a comprehensive framework for ‘combating the employment of illegal aliens.’” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).  The implementing regulations appear at Immigration & Naturalization Service, Final Rule, Control of Employment of Aliens, 52 Fed. Reg. 16216 (May 1, 1987)

[3] 8 U.S.C. §§ 1324a(a)(1)(B), 1324a(b).

[4] Section 1001 is the general federal statute governing false statements and concealment in any matter within the federal government’s jurisdiction.  Section 1028 prohibits fraud with regard to identification documents.  Section 1546 prohibits fraud with regard to visas, permits, and related documents.  Section 1621 is the general perjury statute.

[5] For a listing and description of state identity theft statutes, see National Conference of State Legislatures, Identity Theft, accessible here.

[6] See, Brief of Indiana and Eleven Other States as Amici Curiae in Support of Petitioner, Kansas v. Garcia, Dkt. No. 17-834, 2019 WL 2339283, at  *8 (May 13, 2019)(asserting that enforcement of laws limiting employment of sex offenders or those with deficient professional licensure records would be undermined).

[7] For example, Judge Raymond Kethledge of the Sixth Circuit recently asserted: “In my own opinions as a judge, I have never yet had occasion to find a statute ambiguous.”  Raymond M. Kethledge, Ambiguities and Agency Cases: Reflections after (Almost) Ten Years on the Bench, 70 VAND L REV EN BANC 315, 320 (2017).

[8] In Garcia, the Kansas Supreme Court majority explained the Court’s general approach to statutory interpretation.

Our “primary consideration in ascertaining the intent of the legislature” is the language of a statute; we think “the best and only safe rule for determining the intent of the creators of a written law is to abide by the language that they have chosen to use.” This court does not move from interpretation of plain statutory language to the endeavor of statutory construction, including its reliance on extra-textual legislative history and canons of construction and other background considerations, unless the plain language of the legislature or Congress is ambiguous.”

306 Kan. at 1124; 401 P.3d at 595 [citations omitted].

[9] The canon is often honored in the breach, see EINEER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 230 (2008)(“the Supreme Court does not consistently apply the anti-preemption canon”).

[10] The majority said:

[W]e hold that it is unnecessary to apply a presumption against preemption when a court evaluates the merit of an express preemption claim, as long as the language of the congressional enactment at issue is clear. This makes logical and legal sense. There is simply no need to presume congressional intent when Congress has stated its intent explicitly.

306 Kan. at 1123; 401 P.3d at 595.

[11] The Court also cited two separate opinions by Justice Kennedy as expressing doubt about the use of the presumption against preemption when a party relies on express presumption.  306 Kan. at at 1122; 401 P.3d at 595-95.

[12] Brief for the Chamber of Commerce of the United States of America as Amicus Curiae Supporting Neither Party, Kansas v. Garcia, Dkt. No. 17-834, 2019 WL 2353699 *3-*9 (May 31, 2019)(discussing Supreme Court precedent and lower court departures from that approach).

[13] I have argued that such a presumption is problematic.  Bernard W. Bell, A New Sheriff’s In Town: The Trump Administration And “Sanctuary” Jurisdictions, 87 UMKC L. REV. 629, 647-48 (2019).  Congress neither has the mechanism nor the time to constantly revisit statutes in light of changes in state law and reconcile federal and state statutes.  Moreover, the presumption gives states that seek to minimize federal statutes’ scope primacy, by advantaging the last to act and the more nimble.  State governments are generally more nimble.  And when general statutes, such as Kansas’ identity theft statute, are used in creative ways, there is even more of an advantage to state law, prosecutors can act even more nimbly than can state legislatures.  For instance, Justice Biles noted that all identity theft cases involved unauthorized aliens that had reached the Kansas appellate courts originated in a single prosecuting jurisdiction.  306 Kan. at 1142; 401 P.3d at 606.

[14] Smith v. U.S. 508 U.S. 223, 228-37 (1993) (does penalty enhancement for “use” of a gun in relation to a drug trafficking crime apply to using the gun for barter rather than as a weapon); Young v. Community Nutrition Institute, 476 U.S. 974, 980-81 (1986)(dangling participle resulted in statutory ambiguity, given that it could have modified one of two phrases).  The former is what William Popkin describes as semantic ambiguity (more particularly, vagueness); that latter is what he describes as syntactic ambiguity.  WILLIAM D. POPKIN, A DICTIONARY OF STATUTORY INTERPREATION 238-39, 258-59 (2007).

[15] SHAMBIE SINGER & NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION §59.4 (accessible on Westlaw).  Granted, that interpretive canon is also often honored in the breach.  See, WILLIAM D. POPKIN, A DICTIONARY OF STATUTORY INTERPRETATION 191-93 (2007).  Does the rule of lenity apply when assessing the potential preemptive effect of a federal statute the limits state prosecutions?  If so, this was suggest a broad interpretation of the federal statute which would be the interpretation that reduced the scope of unlawful conduct.

[16] The same approach has been employed with respect to the presumption against waiver of the federal government’s sovereign immunity.  See, West v. Gibson, 527 U.S. 212 (1999).  While the West v. Gibson majority applied a purposive approach and concluded that statutory language “can enlarge or contract their scope” as changes in the law or the world require, the dissenting textualists applied the clear statement rule regarding waivers of sovereign immunity to embrace one of two plausible readings of the text.  Id. at 226 (Kennedy, Scalia, and Thomas, dissenting).  As they explained: “A plausible, and perhaps even the best, interpretation of § 717(b), then, is that it grants administrative authority to determine which of the traditional forms of equitable relief are appropriate in any given case of discrimination. Whether or not this is the better reading, it should suffice to establish beyond dispute that the statute does not authorize awards of compensatory damages in express and unequivocal terms.”  Id.

[17] John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2464-65 (2003)(“many putative absurdities arise because legislatures cannot anticipate all the contingencies that arise from the application of generally worded laws”); FREDERICK M. SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 16-37 (1991) (describing the problem of statutory generality); Bernard W. Bell, Legislative History Without Legislative Intent: The Public Justification Approach to Statutory Interpretation, 60 OHIO ST. L.J. 1, 94-96 (1999) (same).

[18] Kansas’ identity theft statute was first adopted in 1998.  Johnathan Rhodes Protecting Personal Information From Identity Theft: An Integrated Approach, 80-JUN J. KAN. B.A. 18, 21 (2011) (see, H.B. 2739, 1998 Sess. (Kan. 1998)).  Of course, forms of identity theft have been around for some time, the “false pretenses” headnote has been in existence since at least the Second Decennial Digest (1906-1916), 11 SECOND DECENNIAL EDITION OF THE AMERICAN DIGEST 150 (West Publishing Co. 1920).  However, identity theft by computer and other digital devices emerged in the 1990’s and has become an ever increasing problem since.  Erin M. Shoudt, Identity Theft: Victims “Cry Out” For Reform, 52 Am. U. L. Rev. 339, 340-41, 344-45, 363-63 (2002); BeBusinessed.com, History of Identity Theft Protection; see, H. Rep. No. 108–528, 108^th Cong., 2d Sess. 4-6 (June 8, 2004).  The ‘‘Identity Theft Penalty Enhancement Act’,’ the federal aggravated identity theft statute, was enacted in 2004.  Pub. L. 108–275, 118 Stat. 831, § 2(a)( July 15, 2004)

[19]  ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, REGULATORY FEDERALISM: POLICY, PROCESS, IMPACT AND REFORM 50-51 (1984); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847, 849 (1979); see, Larry D. Kramer, Putting The Politics Back Into The Political Safeguards Of Federalism, 100 COLUM. L. REV.  215, 223-227 (2000); Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 DUKE L.J. 75, 112-17 (2001).

[20] In Ashcroft, the majority referenced the discussion of the political protections of federalism in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550-554, 556 (1985)).  See, Kimel v. Florida Bd. of Regents, 528 U.S. 62, 104-04 (2000)(Thomas, J., concurring in part and dissenting in part)(because the purpose of the clear statement rule is to assure that the legislature has in fact faced the issue of abrogating state sovereign immunity, he was unwilling to permit abrogation based on Congress’ incorporation by reference of a statute that was later revised).

[21] The statement was accompanied by an impressively-long string cite to U.S. Supreme Court cases.  Id. at 1133; id. at 601.

[22] See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527, 528-29 (1989)(Scalia, concurring); John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2388-89 (2003).

[23] Green v. Bock Laundry Mach. Co., 490 U.S. at 527 (1989)(Scalia, concurring);  Feltner v. Columbia Pictures Television, 523 U.S. 340, 355-56, 358-59 (1998); see, Frederick M. Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71, 72-74. Schauer, who is not a textualist, is critical of the doctrine.  Manning, who is a modern textualist, suggests an even broader application of the doctrine.  Manning, supra at 2479-85 (rational basis test under Due Process Clause provided background values that can be used to reject literalist interpretation).

[24] The federal aggravated identity theft statute merely enhances punishments for specified federal offenses, offenses which are by definition limited by Congress’ enumerated powers.  That said, because identity theft is predominantly a financial crime, presumably most identity theft falls with the scope of the Commerce Clause.

[25] Granted 18 U.S.C. §1028 would seem to cover most uses of false identity documents.

[26] Note, the Court expressed refused to grant certiorari on that question.