Controversial Ariz. Immigration Law Defended

President Obama publicly criticized the law as "misguided." Several parties are considering court challenges. Kris Kobach, a former chief advisor on immigration law and border security in the Bush Administration, says the arguments against the law are misrepresentations or simply inaccurate.

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Arizona's tough new immigration law generated impassioned criticism after Governor Brewer signed it last week, from Democrats led by President Obama, who described it as misguided, and from more than a few Republicans, including Karl Rove and former Florida Governor Jeb Bush, who expressed reservations as well. Any number of parties are expected to go to federal court before the law takes effect late this summer.

In an opinion piece in today's New York Times, Kris Kobach argues that the Arizona law is measured, reasonable, constitutional and necessary. Well, do you agree or disagree? Give us a call. 800-989-8255 is the phone number. The email address is talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Kris Kobach joins us now from his office at the University of Missouri in Kansas City, where he's a professor of law. He was previously chief advisor to Attorney General John Ashcroft on immigration law and border security. Thanks very much for being with us today.

Professor KRIS KOBACH (Law, University of Missouri; Former Chief Advisor on Immigration Law and Border Security): Hi. Great to be with you.

CONAN: And one provision of the law would require immigrants to carry their immigration documents on them, and it's caused a great deal of consternation. You say, well, maybe it shouldn't.

Prof. KOBACH: Yeah. The - indeed, I was rather surprised when the president made his statement on Tuesday that he found that provision of the law to be problematic. What he evidently didn't realize when he said that was that it's been a federal crime since 1940 for an alien in the United States not to carry certain documents with him, just like it's a violation of most countries' laws for us, U.S. citizens, if we travel abroad, not to carry documents with us.

CONAN: A passport, usually.

Prof. KOBACH: Well, it depends. In some countries, it's only the passport. In other countries, you may need to carry your visa or whatever other travel documentation you have to have.

CONAN: So the change is that it would become a state responsibility, not just a federal one.

Prof. KOBACH: Well, yeah. It would be - it would add a layer of state penalty to what is already a federal crime. So in addition to any federal penalty that may flow from it, the state could impose a misdemeanor penalty.

CONAN: Another provision of the law that has drawn a lot of criticism is that it would require police officers and other law enforcement officials to, in the course of their duties, ask people for their identification if they suspect they're in the country illegally.

Prof. KOBACH: Well, but it's important to read that part very carefully. It says when the officers are in the course of their normal duties and they make a lawful contact - which means a traffic stop, an investigation for some other violation of law - and then while they're questioning the person, the officer begins to develop reasonable suspicion. It doesn't require the officer to ask any questions about the person's identity.

It just says that when the officer starts developing his own reasonable suspicion, he must actually confirm his suspicion or dispel his suspicion by contacting the federal government. And ICE has had a - even before it was ICE, it was INS, has had a 24/7 hotline for local police officers for exactly that purpose since the mid-1990s.

CONAN: And, as you know, critics say this is inevitably going to lead to racial profiling.

Prof. KOBACH: And, again, that one suggests to me that the critics aren't reading the bill because section two expressly prohibits racial profiling. And so, in addition to that, the bill is saying you can't enforce this bill proceeding solely considering the race, color or national origin of a person, it also - the bill doesn't, in any way, disrupt the existing Fourth Amendment protections against racial profiling.

So - and I argue in the New York Times piece this morning that, in many ways, the bill might actually reduce the likelihood of racial profiling by compelling the police officer to contact the federal government at the earliest practical time - practicable time to actually verify the person's status, not just proceed solely on his own suspicion.

CONAN: Yet, you know as well as I do that police officers have been known to manufacture any number of reasons for pulling over cars that they think are suspicious.

Prof. KOBACH: Well, you know, if that's the line of criticism, then I think someone, you know, making an argument really has a problem with police officers, not with this law or, indeed, any law. If the police officer is going to selectively enforce against people of only one race, then really, the problem's with the police officers, not with the law.

CONAN: There is a broad question about the constitutionality of this. And indeed, as you mentioned, this is a federal responsibility. And the federal government, the Justice Department has been asked to look into this, but, in general, is not kind to having 50 different foreign policies - effectively, every state having their own.

Prof. KOBACH: Well, and this issue's actually been litigated a great deal in courts, and I've been involved in many of these cases. Back in 1976, the Supreme Court of the United States made clear that states may enact laws to discourage illegal immigration or the employment of unauthorized aliens in the United States. And the states' laws, however, have to be consistent with congressional objectives and have to be consistent with federal law.

And Arizona is actually three-for-three in the courts. They have enacted three laws in recent years. In 2004, they denied public benefits to illegal aliens. In 2005, they created a state crime of human smuggling. And in 2007, they enacted a law requiring all businesses to use the E-Verify computer system to verify employees' lawful status, and also imposed a state sanction upon employers who were willingly - willfully employing illegal aliens in their workplace.

Arizona won all three of those cases. The same people who are raising the hue and cry today and saying that this bill is unconstitutional said the same sort of things about those prior laws. And Arizona was successful in court all three times.

CONAN: So you would be comfortable taking this law into federal court and defending it?

Prof. KOBACH: Absolutely.

CONAN: And would you expect - if, again, the law takes effect 90 days after the legislature ends its session, and that's expected to be sometime in August, just the way these things work out. Between then and now, it's going to go to federal court. Just as a practical matter, would you expect the federal courts to issue an injunction to say, don't put this law into effect until we can figure it out?

Prof. KOBACH: Well, it really will be up to the federal district judge who has the case. I'm certain that plaintiffs would probably ask for a preliminary injunction. And some judges - it really depends. Some judges may be more inclined than others to issue an injunction in a case like this. So it's really hard to predict. It depends on which judge is chosen and what arguments they can muster that a preliminary injunction is necessary.

CONAN: And this would come up in which circuit? The Ninth?

Prof. KOBACH: Yes. Arizona is in the Ninth Circuit.

CONAN: Okay. Kris Kobach is with us from the University of Missouri at Kansas City. 800-989-8255. Email us: talk@npr.org.

Let's start with Jason, Jason calling us from Kalamazoo.

JASON (Caller): Hello.

CONAN: Hi, Jason. You're on the air.

JASON: Hi. I just wanted to say that I totally agree with what Arizona's doing. If the federal government is not going to do something about the people coming across the border, then the states, especially the states down there, have to do it. I mean here in Michigan we don't - obviously don't have that problem.

But if I get pulled over or if I'm walking and doing something wrong and I'm asked to show some kind of an ID, I need to have my Michigan ID or a driver's license on me or I can get a ticket for it.

CONAN: For not having your ID?

JASON: It's not - it's not any - I mean, it doesn't happen, but it's not any different than them requiring these people to have some form of identification. And if they're not here legally, then they're -something should happen to them.

CONAN: All right. Kris Kobach, the requirement - would a driver's license be a valid form of identification under this law?

Prof. KOBACH: Yeah. Actually, it would. And I'm glad Jason brought up that issue. The law doesn't require - the Arizona law doesn't require U.S. citizens to carry anything. And I think that's another misconception that's out there. But the law does mention driver's license and it says - driver's licenses. And it says if a reasonable suspicion develops that a person is an alien who's unlawfully present in the country, having an Arizona driver's license is a free pass. The alien - the suspicion will be dispelled if the alien has that driver's license, because Arizona limits its driver's licenses only to aliens who are lawfully present.

CONAN: So prima facie evidence of citizenship.

Prof. KOBACH: Well, not of citizenship, of lawful presence.

CONAN: Of lawful presence in the country. Okay. All right, Jason, thanks very much for the call. Appreciate it.

JASON: Thank you.

CONAN: Bye-bye. Let's see if we can go next to - this is Andrew. Andrew calling from San Antonio.

ANDREW (Caller): Hi, there.

CONAN: Hi, Andrew.

ANDREW: Hi. My - I object to the law that was passed in Arizona, specifically because it looks to me as if the state of Arizona is shifting the burden of proof for guilt and innocence from the state to the individual. You have people who - police officers are now legally required to ask that someone prove that they're a citizen without having evidence that they're not, other than a reasonable suspicion. That seems to me to violate a fundamental core principle of our justice system. And I'll take my comment off the air.

CONAN: Okay, Andrew. Thank you.

Prof. KOBACH: Well, you know, it's important to note that the reasonable suspicion that an officer might generate - that officer might develop in the context of, say, a traffic stop, that already exists under present law. And indeed in all 50 states officers routinely develop reasonable suspicion that someone is unlawfully present and then they call the federal government in most cases and get a confirmation from them.

So you know, really, this law doesn't change that much. And I think that's another major misconception. I think people think that this law, you know, really transforms the landscape in Arizona. But it doesn't. It actually - and in the case of the identity document portion of the Arizona law, which Andrew is referring to, you know, there too the - it merely mirrors federal law. You already have, under a federal law, if you're an alien, a requirement to have that document on your person. And this simply says in Arizona it may result in a state misdemeanor as well.

So it's not a radical transformation. And as far as transforming any sort of burdens or presumptions of innocence, it doesn't. The same presumptions exist that were in place before the law.

CONAN: There are law enforcement officials in Arizona who are split. We heard today of one - one of the challenges to the case, to the law in court will be filed by a police officer in Arizona, saying, wait a minute, you're asking me to uphold federal law; that's not my responsibility.

Prof. KOBACH: Well, and certainly law enforcement officers can always exercise their own discretion in how to proceed in the situation. The law doesn't compel officers to go out there looking for illegal aliens. You know, on the contrary, it just says when the officer, on his own in the course of other normal routine law enforcement duties, comes across people that he suspects are unlawfully present, he should make a phone call to the federal government and transfer - if he doesn't want to have anything to do with it, he could actually just tell ICE, ICE gets on the phone and confirms the status of the individuals.

He could say, well, you know, would you like to pick up these people; you know, we're not interested in making a state prosecution under any state laws. And ICE may say yes, they may say no. More often than not in Arizona, they say yes. There's actually a very good cooperative relationship already between ICE and the jurisdictions that are trying to help the federal government.

And increasingly, you know, the population of Arizona wants state and local officers to lend a helping hand when they can because they are literally at ground zero in the immigration - illegal immigration shockwave that, you know, that's hit this country.

CONAN: We're talking with Kris Kobach, a professor of law at the University of Missouri at Kansas City, the author of an op-ed piece in today's New York Times, "Why Arizona Drew A Line." You can find a link to that op-ed at our website. Go to npr.org, click on TALK OF THE NATION.

And you're listening to TALK OF THE NATION, from NPR News.

And let's go next to Bill. Bill calling us from Roanoke in Virginia.

BILL (Caller): Hey. How are you today?

CONAN: I'm well. Thank you.

BILL: Yes. You know, this whole debate smacks of - I mean, the vision that comes to my mind when I hear this is some sort of old Nazi movie where you have (unintelligible) may I see your papers, please? I don't know. I'm a general contractor and I've hired a number of illegal aliens over the years. And primarily I hire them because they - they're excellent workers. They work hard. I respect them for the - what they've gone through to get to this country and work. And what we're confronted with now is a bunch of young people who, all they want to do is stay at home and watch TV and play on the computers. So I mean, they're filling a void. Arizona must be having a terrible time. I can appreciate the fact that they must be inundated with illegal aliens. But here in Virginia, it's not like that.

CONAN: Does it...

BILL: And if you've got work to have done, you're - probably your best recourse is to look for some Latinos and you will be well-served by their work ethic. And...

CONAN: And I'm sure you're right that...

BILL: I love them. And if I have an opportunity, and I'm sure I will, I'll hire some more.

CONAN: And I'm sure you're right that they're fine workers. Does it bother you at all, Bill, that you're violating the law?

BILL: You know what? If it was just the question of appealing to some law that they've conjured up to satisfy - no. It doesn't bother me at all, to tell you the truth. And these are human beings, you know, that are looking for work. And they've gone to great effort to get here. And for the ones I've known, I love them, and I'll continue to hire them. And I just hate - I hate the idea - you know, one of the things we ought to do, is we ought to pull these troops out of Afghanistan and Iraq and seal the border. Seal - a rat couldn't get through it.

CONAN: All right, Bill, thanks very much for the call.

BILL: That would be the way to deal with it.

CONAN: All right. Go ahead.

Prof. KOBACH: I'd like to respond to one point that - you know, Bill obviously is, you know, very open about his violating a federal law in his hiring illegal aliens. And I think he expresses some, you know, rather strong opinions about people based on their ethnicity, which, you know, I would object to. But look, there's 16 million U.S. citizens out of work right now of all different ethnicities. And we are trying - a nation's first responsibility is to its own citizens, especially in an economic recession like this, when people are trying to put food on the table.

And the notion that we should just ignore the fact that there are so many millions of U.S. citizens seeking to work, and that doesn't even count the people who've taken themselves out of the seeking of employment, you know, there's a real problem here. And one way to get more U.S. citizens to work is to ensure that in the marketplace for jobs they are not competing with illegal labor.

CONAN: And does that mean the deportation of an estimated 11 million people?

Prof. KOBACH: Well, you know, the deportation of 11 million people isn't really necessary. And I think this is one of the important aspects of what Arizona has been doing, not just with this law but with past laws. You know, with the philosophy of attrition through enforcement, you don't actually physically deport people. You actually just make it progressively more and more difficult to work illegally and be illegally in the United States. So you just turn up the notch a little bit more with law enforcement each time and people start self-deporting. And that's what they've seen in Arizona.

And it's been, you know, well-confirmed and documented - indeed in a somewhat amusing incident right after the - Arizona introduced its employer sanctions law in 2007, a delegation of state legislators from the Mexican state of Sonora to the south came north to meet with Arizona legislators and said, you know, we don't like your new law because you're encouraging too many of our citizens to return home to Sonora too quickly and our infrastructure isn't good enough to handle this returning wave of return immigration.

So you know, I think it's important to note that Arizona has successfully encouraged people to leave on their own. And that doesn't involve any arrests, doesn't involve any great expenditure of money. Just - it involves giving people a rational calculation that it's in their best interest to go back to their home country.

CONAN: Kris Kobach, thanks very much for your time today.

Prof. KOBACH: My pleasure.

CONAN: Kris Kobach, law professor at the University of Missouri, Kansas City, former chief advisor to Attorney General John Ashcroft on immigration law and border security from 2001 to 2003, with us today from his office.

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