As the U.S. Department of Justice and others weigh challenging Arizona’s controversial new immigration law, the Missouri law professor who helped to draft it is preparing to defend it. A Yale Law School graduate, Kris Kobach teaches constitutional and immigration law at the University of Missouri-Kansas City School of Law and is the Republican candidate for Missouri Secretary of State. He launched a detailed rebuttal of criticisms of the Arizona law in an op-ed article in The New York Times. A White House fellowship in 2001 brought Kobach to the nation’s capital and a position in the office of then Attorney General John Ashcroft. When the fellowship ended, he stayed on as Ashcroft’s counsel and chief adviser on immigration and border security. Kobach is no stranger to immigration controversy. After the 9/11 attacks, he oversaw the Justice Department’s efforts to tighten border security. He led the team that designed and implemented the National Security Entry-Exit Registration System, which registers and fingerprints high-risk visitors to the United States, and which led to the deportation of about 13,000 illegal aliens. Kobach takes credit for leading the department’s much-criticized reforms of the immigration court system, which reshaped the Board of Immigration Appeals in 2002. Those reforms led to a huge surge of immigration appeals to the federal appellate courts and complaints from federal judges about the summary nature of the board’s rulings. He returned to teaching in 2003 and since then, he has developed a busy side career representing local governments in their efforts to attack illegal immigration. For example, he represents the city of Hazleton, Pa., in its so-far unsuccessful defense of its now widely-known ordinance prohibiting businesses from hiring illegal aliens and landlords from renting to them. He defended a similar ordinance from Valley Park, Mo., which a federal appellate court upheld last year. He also represents student citizens challenging states that give resident tuition rates to illegal aliens in Kansas and California. Kobach is also senior counsel at the Immigration Reform Law Institute, a Washington-based legal advocacy group which describes its work as protecting citizens from injuries caused by illegal immigration. And, he is currently on contract to Maricopa County, Ariz.’s Sheriff Joe Arpaio to train deputies on procedures for arresting illegal immigrants. The National Law Journal recently spoke with Kobach about the Arizona law and his role. NLJ: How did you become involved in the drafting of S.B. 1070 KK: I’ve been assisting the state of Arizona since 2006 when Maricopa County asked me to help defend Arizona’s human smuggling statute of 2005 in state court. We prevailed in that case in 2007. I assisted [State Sen.] Russell Pearce in drafting the Arizona employment verification law. That one was challenged as well, this time in federal court. I helped the Arizona Attorney General’s office defend it and we prevailed in 2008 in the [U.S. Court of Appeals for the] 9th Circuit. Senator Pearce asked for my help and others in drafting this law as well as to ensure it conforms to what is permissible under federal preemption doctrine. NLJ: Did you anticipate the national controversy that S.B. 1070 is creating? KK: Frankly, I anticipated some critics to speak out but I did not anticipate it would be this loudly or widespread or become a national story. The prior laws Arizona has enacted were of rather sweeping effect and have been very significant but neither one triggered this sort of national discussion. Arizona in 2007 became the first state to require an e-verify system. There was some protest and some of the same people criticizing S.B. 1070 said that law was unconstitutional. But it didn’t become a national story in the same way this has. At the end of the day, the e-verify law probably will have had broader impact in discouraging illegal immigration than S.B. 1070 will. They’re both good laws and necessary, but it’s somewhat surprising the law with the bigger impact did not create a national discussion. NLJ: How did you ensure that S.B. 1070 conforms with federal pre-emption doctrine, which is likely to be the major basis for challenging the law? KK: The provision of the law that many have focused on is the one makes it a misdemeanor for an alien to fail to carry registration documents on his person. They fail to mention that an individual is only guilty if he is in violation of 8 USC sec 1304(a) or 8 USC 1306(e). Those provisions have been around since 1940, making it a crime to fail to register or carry certain documents. The state statue literally refers to those federal statutes. A person can only be guilty under the state statute if he is guilty under the federal statute. The principle that protects the Arizona law is the legal principle of concurrent enforcement. This has been recognized by several courts, including the 9th Circuit. It holds that a law is not conflict-preempted if the state law prohibits the same behavior that is already prohibited by federal law. Similarly, if a state officer acts in a way to assist the federal government in that action, he concurrently enforces what is already prohibited under federal law. That principle guides any interpretation of S.B. 1070. The controlling Supreme Court precedent is 1976′s De Canas v. Bica. In that case, the Supreme Court recognized states may enact legislation to discourage illegal immigration within their jurisdictions. The mere fact that a state law concerns illegal immigration or affects immigration in some way does not render it pre-empted. NLJ: Do you think the Department of Justice will step in to challenge the Arizona law? KK: It would be highly unusual for the Justice Department to do such a thing unless it was being motivated by political calculations. There have been numerous state statutes that represent state action in the area of illegal immigration and the Justice Department has never weighed in to stop states that are trying to reinforce federal law enforcement. I would imagine they would weigh their actions carefully, and they are not going to find any easy challenge in the text of the statute. NLJ: The Arizona law is not effective until this summer. Do you expect a challenge and when? KK: I expect a challenge will be filed and before the law goes into effect. I anticipate I probably will be providing some assistance to the Arizona attorney General’s office. They are extremely competent attorneys there and have done very well in defending statutes in the past. They are familiar with pre-emption doctrine. NLJ: How are you able to juggle litigating immigration cases with teaching and running for political office? KK: The amount of time it consumes varies. Like any litigator, the schedule ebbs and flows. The fact that I’m in various corners of the country might create the impression I’m handling more cases than I am. It’s just a handful of cases, and I can do it in my spare time. This Arizona law didn’t take an extraordinary amount of time — just phone calls and discussions with others helping to draft it. NLJ: Are you compensated for your litigation? KK: In most cases, if I’m defending a city or state for example, they’ll pay me for my time in helping them. In other cases, it might not work out that way. I’ve represented plaintiffs suing on in-state tuition for illegal residents. There I’m representing students, so public interest organizations have supported the suits. NLJ: Since the law has become so controversial and your role in drafting and defending it is becoming more visible, how has the controversy affected you personally? KK: It has certainly affected me. There are some people who send nasty emails from time to time. But for every nasty one, I receive 50 or 60 supportive ones. It certainly determines how I spend my free time. But it also has been very enlightening and it has opened up some opportunities to meet some great people around the country. It has been very good. NLJ: Why have you chosen this area of the law in which to focus your energy and efforts? KK: I see my involvement in this area as something I can do to use what expertise I have to help enforce the rule of law in America. So many people look at immigration law and the immigration situation and see it as an unsolvable problem. But based on what I have been able to do — the litigation I’m involved in and the statutory drafting — I think our immigration problems can be solved through carefully considered action at the federal level and through state and local action. If you look at any of the categories of crime where there has been a national problem, usually the problem can only be solved when federal, state and local efforts are coordinating and working in concert to achieve the same objectives, and that is certainly true when dealing with illegal immigration.
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