Identity Theft Statutes in Arizona

During the late 1990’s and early 2000’s, Arizona experienced a high volume of identity theft reports. In response to the increase, Arizona legislatures passed two bills that prohibited identity theft. In 2007, the state legislatures passed the Legal Arizona Workers act and in 2008, enacted the Employment of Unauthorized Aliens Act. Shortly after the laws passed, law enforcement, including Sherrif Joe Arpaio and the Maricopa County Sherriff’s department stepped up enforcement when it came to identity theft crimes. This resulted in a large number of illegal immigrates being arrested. In 2014, an Arizona organization called Puente Arizona, brought suit against Sheriff Arpaio, alleging that both of the statutes are unconstitutional.

Puente brought suit in the Federal District Court of Arizona alleging that the two laws are unconstitutional on its face because they violate the Supremacy Clause of the United States Constitution. The Supremacy Clause gives priority to  federal laws over state constitutions and laws. Puente argued that the two state laws are preempted on its face by the Immigration Reform and Control Act, a federal law (IRCA). IRCA is the federal statute that governs the enforcement of immigration. The district court found that Puente was likely to succeed on the merits of its claims and granted a preliminary injunction, preventing Arizona law enforcement from enforcing the two statutes. Arpaio appealed the decision to the 9^th Circuit Court of Appeals.

A few months later, the 9^th Circuit court reversed the district courts order, removing the injunction. The court disagreed with Puente in that the statutes were not enacted to give Arizona the ability to enforce immigration on Arizona’s terms, bypassing IRCA. The court held that despite the lawmaker’s intent, which is no secret when you consider the name of the latter act, “Employment of Unauthorized ALIENS Act”, the statutes do not violate the Supremacy Clause. The intent is clear but the language of the statute prohibits Identity theft for all people, not just illegal aliens. Susie, who is United States Citizen, can be prosecuted under the statute just like Mary, who happens to not be a citizen. The decision slammed the door on a facial constitutional challenge to the identity theft statutes but not so much for an “as-implied’ challenge. The 9^th Circuit Court decided on the facial challenge and then remanded the case back down to the district court, where the district court will still decide on the as-implied challenge.

It will be interesting to see how the district court will rule on the “as-applied” challenge and if the non-prevailing party appeals to the 9^th Circuit Court of Appeals Again. See case decision at: https://scholar.google.com/scholar_case?case=8369233543872561311&hl=en&as_sdt=6&as_vis=1&oi=scholarr