Does Arizona's Immigration Law Have A Chance?

The Supreme Court will hear arguments Wednesday on Arizona's hotly debated immigration law. The court's decision will affect Arizona and other states that have adopted similar legislation. Host Michel Martin talks with one of its authors, Kansas Secretary of State Kris Kobach, and law professor Gabriel Chin.

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MICHEL MARTIN, HOST:

I'm Michel Martin and this is TELL ME MORE from NPR News. Coming up, we'll talk about adult children caring for their elderly parents. That's something millions of Americans are doing right now. We'll talk with three women who, despite being savvy and high-powered professionals, struggled with this. They'll tell us what they learned that will hopefully spare others some of what they went through. That's later in the program.

But first, we turn to the Supreme Court and another highly politicized and closely watched case. Tomorrow the Supreme Court will hear arguments about Arizona's hotly debated immigration law. The legislation expands the powers of local police officers. It says officers have to determine the immigration status of people they stop if they have a reasonable suspicion the person is in the country illegally.

It also makes many federal immigration offenses state crimes and lets local police arrest people without a warrant if they think the person might have committed a deportable offense. Critics say Arizona's law far exceeds a state's authority. In a few minutes we'll speak with a law professor who specializes in immigration law, but joining us now is Kris Kobach. He is the secretary of state of Kansas, but he helped write the Arizona immigration law. He also helped craft legislation in other states, including Georgia and Texas.

And we should mention he's also been an informal advisor to the presumptive Republican presidential nominee, Mitt Romney, on immigration issues. He joins us on the phone from Kansas City, Kansas. Mr. Secretary, thanks so much for speaking with us.

KRIS KOBACH: Great to be with you.

MARTIN: Now, it's been almost two years since Governor Jan Brewer signed SB1070 into law and in that time there have protests, calls for boycotts in Arizona, and of course the Supreme Court challenge. What do you think underlies this polarized response, people with such sharply different views of this law?

KOBACH: I think there is a lot of politicization of this issue and I think the Arizona statute was passed at a particular time, you know, in the run-up to the 2010 elections in the spring. You know, I think that may have a lot to do with it, because frankly, having worked with Arizona over a number of years and helping them draft other laws as well, I would say that this particular law is less sweeping, has less of an impact on illegal immigration than their 2007 Employer Sanctions Law, which, you know, was passed and there was very little, or comparatively little, in the way of protest or public discussion of it.

MARTIN: We don't have the time to explore the entire scope of the law, which is why there are, you know, oral arguments scheduled for this. Could you just give us, as concisely as possible and as simply as possible, what underlies your argument that Arizona in particular and states in general do have the right to do this?

KOBACH: The Supreme Court has laid out that the states do have the right to enact what the Supreme Court called in 1976 harmonious regulations, that are in harmony with acts of Congress. And so in a case like this, for the administration to prove its point, they have to show that this Arizona law is in conflict with an act of Congress. The problem for the Obama administration's lawyers is there is no act of Congress that even comes close to saying states can't do this.

And so with that problem they have resorted to a different tactic in court and they are saying, well, even if there's no specific act of Congress that says Arizona can't do this, we are going to argue that the preferences and policies of this administration are different than Arizona's preferences as expressed in this law, and therefore Arizona is conflicting with our executive branch statements and our executive branch iterations.

And that's a real weakness in this case, and Arizona, I think, will do well in court on Wednesday to point out that there's no act of Congress here barring them; there's only the administration's policies which, and indeed their policy is something like this. Arizona, you know, wants to enforce the federal statute that's been on the books since the 1950s requiring aliens who are in the United States to carry their registration documents with them.

That's been federal law for a long time. But we in this administration don't think that law is so important and so we choose not to enforce it. Therefore Arizona shouldn't enforce those standards either. And that's a weak way of bringing a preemption claim and I think Arizona is going to have some real advantages in this case because of it.

MARTIN: There are some new numbers out today that suggest that significant numbers of people are, in fact, self-deporting; that the number of undocumented immigrants from Mexico is, in fact, lower than it has been in years. But I have read interviews with you where you suggest that one of your underlying concerns and motivations for crafting this law is national security.

I mean are potential terrorists really going to self-deport? I guess the question I have is, is the law really affecting the people who you most hope to target?

KOBACH: Potentially. And the reason I say potentially is this: In order to encourage people to self-deport, which is, you know, really just a fancy way of saying go home - you encourage people to comply with the laws and then come back to this country legally if they so choose - most people are brought here by work. A potential terrorist is brought here, you know, for another purpose, obviously.

So the provisions of Arizona's laws, and it's not just SB1070, that make it harder to gain unlawful employment, those absolutely push your garden variety illegal alien out of the country or at least encourage him to leave. But the terrorist is a different story because there there are some incentives that are created by this law, one of which is the incentive to avoid being detained or avoid being arrested, and the Arizona law increases the probability that a traffic ticket may lead to some questioning and - in the process of receiving that ticket.

So the terrorist suddenly has a slightly higher probability of being apprehended if he's in the country illegally. So it changes the terrorist calculation, not as much as a person who's simply coming to the United States to work, but it does change the calculation somewhat.

MARTIN: Kris Kobach is the secretary of state of Kansas. He helped write Arizona's immigration law. He's also an informal advisor to the Republican presidential nominee, Mitt Romney, on matters of immigration. Secretary Kobach, thanks so much for speaking with us.

KOBACH: My pleasure.

MARTIN: If you just joined us, we're talking about the Supreme Court, which is due to hear arguments about Arizona's immigration law. We just spoke with Kris Kobach. He's one of the architects of the law. He's currently serving as secretary of state of Kansas. Now we're going to turn to Gabriel Chin. He is a professor of immigration law at the University of California at Davis School of Law. Previously, though, he taught at the University of Arizona and has followed this legislation closely.

Professor Chin, welcome to you to the program.

GABRIEL CHIN: It's great to be here. Thanks.

MARTIN: What is your assessment of Arizona's SB1070, this immigration law? Do you think it will pass constitutional muster?

CHIN: I don't. If the Supreme Court follows its precedents and if it follows the statutes that Congress has passed, then they're likely to strike down SB1070 and uphold the Ninth Circuit's injunction.

MARTIN: You hear Kris Kobach's explanation of why he feels that the law will prevail. Tell us as briefly and concisely and as simply as you can why you disagree.

CHIN: Because there are a number of laws that deal with this issue. One statute says that the secretary of Homeland Security and the Attorney General and the State Department are responsible for carrying out federal immigration laws. They have the responsibility to do it to the exclusion of other agencies. Now, the Congress did provide that there is a role for the states. The states can cooperate with the Attorney General in the identification, apprehension, detention and removal of unauthorized aliens.

And the key word there is cooperate with the Attorney General. So Congress clearly wanted to put the federal government enforcement apparatus in charge, and absolutely the states can help - but only to the extent that the federal government wants the help.

MARTIN: I wanted to ask you the same question I asked Kris Kobach about why you think there has been such profound difference of opinion on this issue. Why do you think that is?

CHIN: As a legal question, I don't think there has been a sharp division. Every lower court to look at these types of statutes in Alabama, South Carolina, Utah and Arizona has said they're unconstitutional. As a sort of plain vanilla constitutional analysis question, if you look at the old cases, if you look at the statute, it's pretty clear that Congress is in charge here. The federal government is in charge here.

I think it's a complicated political issue because on the one hand the interests at stake of the individuals we're talking about, the undocumented people, the majority of them who are parts of mixed families, they have U.S. citizen children, U.S. citizen spouses, lawful permanent resident children and spouses, and the idea that they should be driven out is, to some people, quite harsh. To other people it's only fair. It's following the law. But for critics of the law, the reason they feel so strongly about it, is because you're tearing families apart, including families with deep roots in the United States.

MARTIN: What about Mr. Kobach's argument, though, that the provision requiring legal immigrants to carry documents proving that is already part of federal law, so it's a very short journey from there to allowing or requiring local law enforcement officials to demand to see them? What about that?

CHIN: These whole problems came up before. They came up in the 1870s in California, when California wanted to drive out the Chinese. And the basic law was established by the U.S. Supreme Court and by Congress, then. And the idea is that these laws should be established and carried out by Congress.

Here's what the Supreme Court said in 1876. The responsibility for the character of those regulations and for the manner of their execution belongs solely to the national government. If it be otherwise, a single state can, at her pleasure, embroil us in disastrous quarrels with other nations.

Congress and the Court don't trust the states in a context like this, that is highly politicized, highly fraught. Both the establishment of the laws and carrying them out has to be primarily done under the authority of the federal government. If the states can do it, they're going to do it as they do in Arizona. It's a political frenzy there.

MARTIN: Do you feel comfortable hazarding a prediction about how the law will fare at the United States Supreme Court? Mr. Kovach feels very confident that the law he helped craft will be upheld. What is your sense?

CHIN: I think that it's much more probable that all or part of SB 1070 is going to be struck down. There's four provisions at issue. Two of them create Arizona crimes based on immigration law. One of those was reviewed in the Supreme Court in 1941 and the Supreme Court struck it down. I would say it's extremely unlikely that they're going to overrule that.

I think both of those crimes are going to wind up struck down by a majority, perhaps all of the members of the court, because you just can't have the states establishing their own separate immigration policies, separate immigration crimes. They've started to do that.

Secretary of State Kobach says that these local laws are mirror images of federal law, but they're not. They're - in fact, as they actually are drafted and put into the statute books in the states, the legislatures - naturally, they want to tailor them to their own preferences, so they do them differently in terms of penalties and in terms of exceptions. So we really are - if the Supreme Court were to give a green light for things like this - going to have a patchwork. We're going to have 50 different immigration laws. I don't think the Supreme Court is going to accept it.

MARTIN: Gabriel Chin is a professor of immigration law at the University of California at Davis School of Law. Previously, he taught at the University of Arizona James E. Rogers College of Law, and he's been following these issues closely and we caught up with him at the campus of UC Davis.

Professor Chin, thanks so much for speaking with us.

CHIN: Thank you.

MARTIN: If you missed any or all of our conversation, previously, we spoke with Kris Kobach, who was one of the architects of the Arizona law. You can catch up on our website. Go to NPR.org, click on the Programs tab and then on TELL ME MORE.

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