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Architect of SB1070 insists immigration law will survive appeals

Kris Kobach (Photo courtesy of the Kansas City Star)

Kris Kobach (Photo courtesy of The Kansas City Star)

If the pen is mightier than the sword, then Kris Kobach has been cutting a wide swath around the nation.

From Fremont, Neb., to Hazelton, Pa., and Farmers Branch, Texas, to Valley Park, Mo., the Kansas law professor and Republican candidate for Kansas secretary of state has written local ordinances that forbid renting housing to illegal immigrants and hiring them.

Some of those laws are on appeal after being struck down.

But probably no law he authored has made a bigger splash than SB1070, Arizona’s controversial illegal immigration law.

Gov. Jan Brewer’s political stock soared after she signed the bill, protestors marched in Phoenix streets and held vigils at the state Capitol for weeks, activists and entertainers called for boycotts of the state, President Obama weighed in and the U.S. Department of Justice filed suit to forbid the law from taking effect.

As the nation awaited U.S. District Court Judge Susan Bolton’s decision on SB1070, Kobach, who has degrees from Harvard, Yale and Oxford University, was confident the law he wrote would stand and police would soon be enforcing it.

He wrote in the National Review Online: “The Obama administration’s suit against Arizona will be on thin ice from the start. There is no federal statute that the administration can point to that Arizona has violated. They will rely on activist theories of federal preemption that the ACLU has been peddling with little success for years.”

But Bolton sided with the feds and placed a temporary hold on key portions of the law.

Kobach’s interest in immigration law was spawned by the terrorist attacks of Sept. 11, 2001, and his subsequent work with the Bush administration, where he served as U.S. Attorney General John Ashcroft’s chief adviser on immigration law and border security.

Kobach said he is the architect for the National Security Entry-Exit Registration System, or NSEERS, which tracks who enters and leaves the country.

He has been on the faculty of the University of Missouri-Kansas City since 1996, and is on leave while he runs for office. This isn’t his first run for public office. He was an Overland Park, Kan., city councilman from 1999 to 2001, and he lost a bid for Congress in 2004.

Kobach’s professional time these days is split between running for office and defending the laws he wrote.

In an Aug. 18 interview with the Arizona Capitol Times, Kobach discussed his involvement with drafting SB1070 and his thoughts on Judge Bolton’s ruling. During the telephone interview, his young daughters laughed and chattered in the background as he drove to Nebraska to visit family and argue a case in court the next day. He was representing property owners who are challenging in-state tuition rates for illegal immigrants.

Tell us about how you became involved with drafting SB1070.

I’ve been working with the state of Arizona since 2006. After Arizona passed the human-smuggling act of 2005, it was challenged in Maricopa County Superior Court and the Maricopa County Attorney’s Office asked me for help in defending the case. I assisted the county in writing its briefs, and I’ve been working with the state of Arizona and Maricopa County ever since.

When Russell Pearce put together the Legal Arizona Workers Act of 2007, I assisted in the drafting of that bill, and then I also assisted in the defense of that bill. When he started putting together the SB1070 bill, again I was involved.  So it goes back to 2006.

Tell us the process you went through in drafting 1070. How much of it is yours and how much of it is Russell Pearce’s?

Russell Pearce is without question the driving force behind the bill. He is the person who made it happen. He is the legislator who came up with the direction of the bill. It is certainly his project primarily. It would have never happened without him.

Where my work is involved is primarily in the details. For example, there are many ways to increase the effectiveness of state and local law enforcement to enforce laws against illegal immigration, but there are only certain ways to do it that will pass constitutional muster. The specifics are where I was most involved; the exact phrasing of the specific provisions.

Are you working on any legislation right now with Russell Pearce or with anyone in Arizona?

No, not right now.

We’ve got a delegation of Colorado lawmakers here to learn about SB1070 and they expect to draft a similar bill there. Since Judge Bolton’s ruling, have you seen any rise or decline in the interest of other states to draft similar legislation?

Interestingly, since Judge Bolton’s ruling, there hasn’t been any reduction in the demand for SB1070-style legislation in other states at all. It seems to be as strong as ever. I think legislators in other states realize this will probably be decided in the 9th Circuit or the Supreme Court, not in Judge Bolton’s court.

Are you helping with any of that?

I have been contacted by legislators in a handful of states, and I have said that if they need my help when the next legislative session begins in 2011, I will help if I have time.

Can you explain to the layman out here the flaws with Judge Bolton’s ruling?

The primary problem with Judge Bolton’s ruling is that she expresses a view of preemption that is too broad. Preemption is the process by which Congress displaces states from a field and essentially prevents states from acting in an area.

Judge Bolton embraced a novel theory that the plaintiffs had been suggesting, which held that preemption can occur when the Executive Branch decides not to enforce a particular law. The Supreme Court has never held that that would amount to preemption. The Supreme Court has always held that it takes an express act of Congress to displace the states from the field. So if Judge Bolton’s theory of preemption were correct, then the Executive Branch would be usurping from Congress the power to preempt. It is a theory that is unprecedented, and I don’t think it will stand up on appeal.

Was she just wrong legally or do you consider her, as some people have suggested, an activist judge?

I just think that her decision was mistaken and the theory the Justice Department was offering was one that might look plausible at first glance, but it actually contradicts some very basic principles of preemption.

So what are your thoughts on the backlash toward Bolton? She’s received threats, harsh criticism. Have you followed that?

No, I have not followed it. It’s totally inappropriate for anyone to criticize a judge in a situation like this. She is obviously doing her best to wade through some very complex areas of law. Just because a judge makes a mistake, that does not justify any sort of harsh criticism, especially in an area like this where it is a particularly complex area of law.

Knowing what you know now about her ruling, would you have drafted the law any differently and does her ruling have any effect on how you’ll draft future legislation?

There is another mistake in Judge Bolton’s ruling beyond her misapplication of preemption doctrine and that is, she misinterpreted what the Legislature’s intent was concerning the inquiry into a person’s immigration status in Section 2 of the law.

She read SB1070 as requiring state and local police to verify the immigration status of every single person arrested, including every person pulled over for a traffic violation. That was not the intent of the bill, and the bill as written does not support the reading that she gave it. However, she misread the bill.

In that respect, knowing that she was going to misread it in that way we probably, if we had known ahead of time, we probably would have chosen phrasing to make double sure she didn’t have that misreading. Her reading doesn’t really square with the text.

You once said the law was built like a tank to withstand the appeals process. Did you believe it was going to roll through unscathed or were you surprised by Bolton’s ruling?

I was surprised by the way she misread the provisions governing inquiry into immigration status. I think most people reading the statute would not have read it the way she did and that was surprising.

However, other portions of the bill where we made it redundantly clear what the bill was intended to do have warded off attack. For example, you saw many critics of SB1070 claiming that it would promote racial profiling. Well, SB1070 actually prohibits racial profiling, not once, but four times, in four different sections. That is an example of redundant defenses built into the bill like a tank. I think it became very clear to the Justice Department attorneys that there was no way they could bring a racial profiling challenge to SB1070.

Are you going to be arguing for the state at the 9th Circuit?

I’m assisting the Governor’s Office in preparing the briefs for the 9th Circuit now. Not sure who’s going to be arguing the case.

How do you anticipate that is going to go? Can you give us a little glimpse into what we can expect?

I think you’ll see many of the same arguments that were made before Judge Bolton. A lot of it will depend on the panel that is assigned to the case, the panel of three judges.

Different judges will focus on different aspects of the law, but it’s pretty hard to predict ahead of time where oral arguments will focus or what questions will be asked. It’s pretty difficult to predict, but the basis for the law and the principles on which the law is founded will remain the same and many of the arguments will remain the same.

UpCloser with Kris Kobach

You’re a graduate of Harvard and graduate of Yale law school, so who do you root for in the football rivalry?

I root for Harvard is the short answer to the question. But when you’re talking about the Harvard-Yale game, most Americans wouldn’t recognize that game as the same level of college football that they’re used to seeing. It’s a little bit lower standard. I’m not expecting to see either team in the Rose Bowl anytime soon.

If you could be either one of the following for the rest of your career: a trial lawyer, a politician, or a law professor, which would it be?

For the rest of my career, huh? I don’t know. My career has been marked by so many changes and twists and turns it’s hard to imagine doing just one thing for the next 30 years. I suppose, right now, I’m in the middle of an election cycle and I’m focused on political office, so if you ask me now it would be political office, but if you ask me in 10 years it might be a different answer.

You’ve got a lot going on right now between your teaching, running for office and the cases, so do you have any spare time and what do you do with it?

Actually, FYI, I’m on a leave of absence from the faculty because of the election. I do have a little bit of spare time, not much. If it’s hunting season, I hunt. And if it’s summer, I spend time rowing. And I have three little kids, so I try to spend as much time as I can with my kids.

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