              IN THE SUPREME COURT OF IOWA
                              No. 15–0671

                            Filed June 9, 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.
                                          2

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-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
                                      3

      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 Casteneda. 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
                                    4

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.
                                    5

      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, ___, 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.
                                       6

      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 ___, 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 (2012) (No. 11–182), 2012 WL 1114006, at *6.

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
                                    7

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.
                                        8

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 ___, 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 ___, 132 S. Ct. at 2504 (quoting Hoffman Plastic Compounds,

Inc. v. NLRB, 535 U.S. 137, 147, 122 S. Ct. 1275, 1282 (2002)). Under
                                      9

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 ___, 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.
                                         10

      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
                                     11

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).
                                    12

      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.
                                     13

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
                                     14

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
                                       16

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, 424 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
                                    17

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, E-

Verify. 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 ___, 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 ___, 132 S. Ct. at 2497–98.

Two other provisions gave arrest authority and investigative duties with
                                      18

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

132 S. Ct. at 2498.

        Justice Kennedy delivered the opinion of the Court. Id. at ___, 132

S. Ct. at 2497. Justice Kennedy began with a review of the broad scope

of federal immigration policy. Id. at ___, 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 ___, 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 ___, 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 ___, 132 S. Ct. at 2500–01.      The first provision

considered provided a state criminal penalty for failure to complete or

carry an alien registration document in violation of federal law. Id. at
                                     19

___, 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 ___, 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. ___, 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

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

Id.
                                     20

      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 ___, 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

clause.” Arizona, 567 at ___, 132 S. Ct. at 2504–05 (quoting Geier v. Am.
                                    21

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 ___, 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 ___, 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

discretion of the Federal Government.” Id. Authorizing state and local
                                    22

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

purposes and objectives of Congress.” Id. at ___, 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 ___, 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 ___, 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 ___, 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.

      2. Application of preemption principles to immigration law by lower

federal courts.   After Arizona, lower federal courts have grappled with
                                      23

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

determined that a primary purpose and effect of the statutes was to
                                      24

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.
                                    25

       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. CV-

14-01356-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.
                                      26

        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-I-

9 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
                                     27

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,

            As   with   other     immigration-related   measures,
      prosecution for counterfeiting or using federal immigration
      documents is at the discretion of the Department of Justice
                                       28
      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 ___, 132 S. Ct. at 2507.

      Finally, through the enactment of 8 U.S.C. § 1357(g), Congress has

demonstrated an ability to identify areas of potential federal–state
                                      29

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 ___, 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

violating a federal law even in circumstances where federal officials in
                                    30

charge of the comprehensive scheme determine that prosecution would

frustrate federal policies.” Arizona, 567 U.S. at ___, 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

the United States Supreme Court in Hillman v. Maretta, 569 U.S. ___,
                                    31

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

to false documentation supplied to her employer as an unauthorized
                                     32

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 all-

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

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

___, 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 ___, 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 ___, 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 ___, 132 S. Ct. at 2505. A state statute is

preempted when it stands “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).
                                     33

       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 ___,

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 ___,

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 ___, 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

she is not personally responsible.    She was educated in Iowa, has no

criminal record, is a productive member of the community, and now has
                                    34

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 ___, 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 priorities of

the administrations they serve.     Ga. Latino All., 691 F.3d at 1265.

Although federal law allows state–federal cooperative enforcement by
                                     35

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.
                                        36
                                                      #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, ___, 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. 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.
                                    37

      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.
                                      38

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 ___, 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
                                    39

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 ___, 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 ___, 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
                                    40

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.
                                         41

                                                     #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-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
                                    42

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,
                                     43
      [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.
                                     44
                                               #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]dentify 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
                                    45

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
                                      46

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-exercising-

prosecutorial-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
                                           47

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.
                                        48

1070) were preempted by federal immigration law.          See 567 U.S. 387,

___, 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 ___, 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 ___, 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 ___, 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 ___, 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 ___, 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 ___, 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
                                          49

government’s occupation of the field of alien registration meant that

Arizona “may not enter, in any respect,” that field. Id. at ___, 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 ___, ___, 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 ___, 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___, 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 ___, 132 S. Ct. at 2502.
                                           50

preempted by federal law because it was “inconsistent with federal policy

and objectives” and “an obstacle to the regulatory system Congress

chose.” Id. at ___, 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 ___, 132
S. Ct. at 2505–06. The Iowa laws at issue do not do this.
                                     51

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
                                               52

*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.
                                       53
      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
                                    54

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
                                    55

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
                                          56

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.”
                                          57

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.
                                    58

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:
                                     59
        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
                                          60

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.
                                     61

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.
