Chances ‘Very Good’ Arizona Law Will Stand

Over the past nearly two weeks, supporters of illegal immigration have been literally hyperventilating over Arizona’s new immigration enforcement law — and spreading misinformation.

Rep. Lamar Smith (R-Texas), top Republican on the House Judiciary Committee, hosted a media briefing on the new law yesterday with Kris Kobach, a professor of law at the University of Missouri-Kansas City, A.B. (Harvard University); Ph.D., M.Phil. (Oxford University); J.D. (Yale School of Law). 

Kobach has litigated a number of high-profile lawsuits in the field of immigration.  He is also the principal drafter of Arizona’s new immigration law.

One of the key points of misinformation has been the “show me your papers” comparison to Nazi Germany.

“The Arizona law merely adds a layer of state penalties to what was already federal law,” Kobach explained.  “It has long been a requirement of federal law for aliens to have certain documents on their person while in the United States, just as it is a requirement in most countries on the planet for U.S. citizens who travel there to have their documents in their possession while in that country.”

Another leading point of misinformation is the claim the law creates a police power to detain someone merely going out for ice cream — because law enforcement thinks they “look illegal.”

“In the enforcement through a stop, detention or arrest, on the basis of a violation of any state, county or local law in Arizona, at that point the officer who is investigating the law that was violated, whatever was the basis of the stop — speeding would be the most typical example — if the officer at that point develops reasonable suspicion that the person is unlawfully present in the United States, then the officer must contact the federal government and verify whether or not the person is indeed unlawfully present in the United States,” Kobach said.

“Reasonable suspicion” Kobach explains is something the courts have been defining for 40 years. 

“There are literally dozens and even over 100 opinions defining what reasonable suspicion means — a great number of them in the context of illegal immigration,” Kobach said.  “Reasonable suspicion includes numerous factors and there have to be two or more factors present for reasonable suspicion to exist that a person is unlawfully present in the United States.”

Some examples Kobach gave include someone with no documentation on his person whatsoever.  It can include a person traveling on a known alien smuggling corridor.  They might show evidence of having just crossed the desert.

“Courts have looked at dusty shoes and pants and backpacks with water bottles on the person indicating that he has just completed a long journey,” Kobach said.  “All of these things can constitute individual factors that add up to reasonable suspicion.”

The infrastructure for checking legal status already exists and is used by law enforcement nationwide.  The Law Enforcement Support Center (LESC) is a database tool under the jurisdiction of the U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security.

“Numbers from fiscal year 2005, the latest numbers I have at hand, LESC responded to a very large number of calls — 504,678 calls from state and local law enforcement officers,” Kobach said.  “That’s about 1,383 calls a day.  Most of those calls are from law enforcement officers in traffic stops or similar situations coming upon individuals who they believe are unlawfully present.”

Imagine that.

Kobach also said the bill was drafted with the full knowledge that certain organizations would try to defeat the law. 

“Arizona’s already been down this litigation road three times before,” he said.  “The last three major laws to discourage illegal immigration in Arizona were all challenged in court.  Those three were the 2004 Proposition 200 which limited public benefits to illegal aliens.  That was challenged in court, went up to the Ninth Circuit and Arizona won.”

“In 2005, Arizona passed its human smuggling act at the state level that was challenged in state court and I assisted Maricopa County in defending the constitutionality of that act and Arizona won,” Kobach continued.

“In 2007, Arizona passed an employer act that requires employers to use E-Verify,” he said.  “That was challenged, went up to the Ninth Circuit U.S. court and Arizona won.”

E-Verify is an internet based system that allows businesses to determine the eligibility of their employees to work in the United States.

And the Ninth Circuit is arguably the most liberal court in the nation — the court having once ruled “under God” in the Pledge of Allegiance unconstitutional.

Kobach helped draft the Arizona employer act and believes this one will also withstand legal challenge.

“Arizona is three for three, they’ve been down this road before and they’ve taken great care to draft their laws carefully,” Kobach said.  

He said there’s one complaint already filed by the National Organization of Latino Clergy and Christian Leaders that make the same faulty argument of preemption.

“This is one of the reasons that it mirrors federal law when it comes to the documentation provision,” Kobach said.  “Courts look for conflict between the federal statute and the state law being challenged.  If there is tension or conflict between them then preemption is likely.  If the laws are in harmony as is the case with Arizona — because the Arizona law actually says you can’t be guilty of violating the documentation provisions unless you are guilty of violating the cited federal laws — then what you have is called perfect concurrent enforcement, the courts have referred to it, concurrent enforcement being the state and the federal government are enforcing against the same conduct.”

That makes it difficult for the argument of preemption to stick.

“The other argument that they will make is they will claim an equal protection violation based on the hypothetical possibility that there might be racial profiling,” he said.  “Given that the law expressly prohibits racial profiling it will be very difficult for them to prevail on that one as well.”

“I think that the chances are very good that the Arizona law will stand,” Kobach concluded.


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