Q&A: Kris Kobach, the Legal Mind Behind Arizona’s Immigration Law

Formerly a lawyer in John Ashcroft’s Justice Department, Kris Kobach has spent the last decade laying the legal framework for stricter immigration laws at the state and local level. He helped craft Arizona’s SB1070, which the Supreme Court partially blocked on Monday, and other legislation like it that’s taking root across the U.S...

[Kobach]: The most important provision was section 2(b), the arrest provision that the court upheld, and the provisions that the court struck down were relatively minor...

The arrest provision will come into play thousands of times every day in the state of Arizona, whenever there’s a traffic citation being issued or a crime being investigated. But the employee provision making it a state violation of law to seek employment illegally, that would only come into play once or twice a year if some county decides to launch an investigation into a particular employer. The one that really does the heavy lifting is the arrest provision, which the Court upheld...

the provisions that were struck down were two substantive crimes that the state might have otherwise prosecuted: illegally seeking work and the crime of not carrying the documents that federal law requires you to carry. That said, in most instances where a local police officer is investigating some other crime, determines or has reasonable suspicion that the individual is an illegal alien, then calls the federal government to verify that, there still will be multiple options. The police officer can hold the individual for some other state violation....

It will be felt in the other 49 states. The best way to think about it is to step back and look at what the Supreme Court has done in the last two years. In May of 2011, the Supreme Court sustained Arizona’s Legal Arizona Workers Act, which made Arizona the first state in America to require all employers to use E-Verify to verify the legality of the workforce. And now the Supreme Court has upheld the central provision of SB1070. Those are really the two biggest tools in the toolbox for what a state can do. There are only three states that have done both of those things: Arizona, Alabama and South Carolina...

There are plenty of court cases this will have an effect on. There are pending cases in the 11th circuit, because Alabama has an arrest provision nearly identical to Arizona’s. So does Georgia; that’s also pending in the 11th Circuit… There’s pending litigation in Indiana’s case and Utah’s case—those are both in the circuit courts—so it will affect all of those. The states I mentioned all have something like section 2(b); Alabama has two of the other provisions. The 11th Circuit will presumably strike those two down but uphold the arrest provision. The Alabama law has a bunch of other things in it that are not in the Arizona law, so it’s not clear how the Arizona decision will affect those other provisions...