The battle over illegal immigration heads to the U.S. Supreme Court next week, when the court will hear arguments for and against new Arizona laws requiring police, employers and landlords to expose undocumented immigrants.
Arizona of course is not alone in its crackdown on illegal immigrants, with states including Alabama, Georgia, Utah, as well as a number of cities, passing similar measures.
The movement's chief legal architect is 45-year old Kris Kobach, a former constitutional law professor, current secretary of state of Kansas and adviser to Mitt Romney on immigration issues.
While Kobach is not arguing in the Arizona case, he has been helping other states and cities defend their laws against challenges by the U.S. Justice Department and civil rights groups.
Reuters' Terry Baynes recently discussed with Kobach the issue of state versus federal authority in immigration matters. The questions and answers were edited for clarity and brevity.
Reuters: What do you think about immigration policy changes being forged in the courts?
Kobach: Almost all of these cases center on the question of federal preemption -- whether or not states and cities can pass laws that regulate immigration alongside the federal government. Arizona won a victory last year when the Supreme Court upheld its 2007 legal workers law that requires employers to verify the immigration status of their employees. That sent a green light to all states and cities that if they want to require employers to run E-Verify searches on employees, they can.
Reuters: Why isn't immigration an exclusively federal matter?
Kobach: The federal government has primary authority over immigration, but the Supreme Court has ruled multiple times that states have spheres of activity where they can operate to discourage illegal immigration. It's an area of shared authority.
Reuters: How do you respond to the Obama administration's argument that federal immigration law is not designed to ferret out every person unlawfully present in the United States but rather to serve a broader federal policy with its own set of priorities?
Kobach: The federal immigration law written by Congress is very clear and uncompromising. It calls for enforcement across the board. The Obama administration's argument has been: 'We, the executive branch, choose to not enforce these laws.' It's a novel theory, but it doesn't square with preemption. Acts of Congress, treaties and the Constitution can preempt state laws. Executive pronouncements do not preempt.
Reuters: Are you involved in the Arizona case?
Kobach: I submitted an amicus brief on behalf of Arizona, addressing two narrow issues. First, the executive branch cannot preempt the states. It must be Congress, and the acts of Congress do not express any attempt to push aside the involvement of the states. Second, the Department of Justice argues that the decision whether to deport a particular alien is a complicated one that the federal government needs to be able to make. But if you look at the federal immigration laws passed in 1996, Congress took away that prosecutorial discretion the Obama Justice Department claims it has.
Reuters: What's the biggest challenge in the litigation over immigration laws?
Kobach: Judges will sometimes have difficulty separating out the political arguments from the legal arguments. That's always a challenge, to make sure that the politics does not interfere with what should be an apolitical legal determination concerning preemption.
Reuters: How were the Arizona and Alabama laws drafted to withstand legal challenges?
Kobach: The state law must use the exact terminology of federal law. It must also define prohibited behavior at the state level so that it's perfectly congruent with prohibited activity at the federal level. One common misconception is that Arizona was doing something new and different by requiring immigrants to carry their registration documents. But that's been required by federal law since the 1950s.
Reuters: You've described these laws as part of a policy of "self-deportation." What do you mean?
Kobach: There's a false dichotomy that constantly emerges when you see politicians talking about immigration. They'll say you can't round up 11 million people and enforce the law 100 percent, so amnesty is the only rational way to move forward. But no serious thinker would say those are the only two approaches to a law enforcement problem. The rational solution is to ratchet up the level of enforcement. Then illegal aliens will self-deport because the cost-benefit calculation changes.
Reuters: A study by the Center for Business & Economic Research at the University of Alabama found that Alabama's new immigration law will shrink the state economy by $2.3 billion and cost the state 70,000 jobs. What do you think about the economic impact of the new immigration laws?
Kobach: The Alabama study did not consider the huge fiscal burden illegal immigration is placing on Alabama taxpayers. The other factor that needs to be considered is the benefit of removing Americans from welfare rolls and allowing them to work. Once illegal aliens are removed from the labor market, wages will inevitably come up.
Reuters: What's your own immigration story?
Kobach: My great grandparents came from Norway and Germany and settled in Wisconsin. They were farmers for the most part. I'm a fourth-generation American.
Reuters: How did you become interested in immigration reform?
Kobach: One of the biggest epiphanies for me was the 9/11 hijackings. I was working at the Justice Department for Attorney General John Ashcroft. All hijackers had come into the states legally, but five of the 19 became unlawfully present during their stays. Four of those five were apprehended by state and local police for traffic violations while they were in the country illegally. In none of those cases did the state or local officer have the information available to make an arrest and potentially foil the 9/11 plot. That realization was essential to my understanding of how critical federal and state cooperation is in this area.
Reuters: What's the most influential law review article you've written?
Kobach: In 2008, I published an article in the Georgetown Immigration Law Review, "Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration." Arizona's SB 1070 manifests many of the concepts that I prescribed in that article.
Reuters: Has anything surprised you about how these laws have played out?
Kobach: I didn't anticipate these state laws would become national issues in the way they have. I also never imaged the Justice Department would sue a state for trying to help the federal government enforce the law. That's never happened in American history before.
(Reporting by Terry Baynes)