Kris Kobach, Nativist Son – The Legal Mastermind Behind the Wave of Anti-Immigration Laws Sweeping the Country

By Suzy Khimm

If there's a controversial new anti-immigration law that's captured national attention, chances are that it has Kris Kobach's imprimatur. A telegenic law professor with flawless academic credentials—Harvard undergrad, Yale Law School—Kobach helped Arizona lawmakers craft the infamous immigration law that passed in the spring of 2010. He's coached legislators across the country in their efforts to pass dozens of similar measures, ranging from Alabama, Georgia, and Missouri to the small town of Fremont, Nebraska, pop. 26,000. His record has helped propel him into elected office, becoming Kansas' secretary of state just six months after the passage of Arizona's SB 1070.

Kobach routinely denies that he's the progenitor of the anti-immigration laws he's drafted or defended. Rather, he insists he simply assists officials already committed to tougher enforcement policies. "I did not generate the motivation to pass the law...I am merely the attorney who comes in, refines, and drafts their statutes," he says.

But advocates on both sides of the immigration debate agree that Kobach's influence has been far-reaching. Rosemary Jenks of NumbersUSA, an anti-immigration group, calls Kobach "instrumental in helping states and localities deal with the federal government's authority." Vivek Malhotra, a lawyer who worked for the American Civil Liberties Union when it tussled with Kobach in court, says, "What Kris Kobach has done as a lawyer is really gone out to localities around the country and really used them as experimental laboratories for pushing questionable legal theories about how far states and local governments can go."

Kobach, 45, has spent much of his professional life developing the  legal framework that a growing number of officials have used to justify  laws further criminalizing illegal immigration. A rising star in the  Republican establishment, Kobach joined John Ashcroft's Justice Department just days before 9/11. Over the next two years, he helped  create a program that required all visiting citizens from 25 mostly Arab  countries to be fingerprinted and monitored—a policy that critics said  amounted to racial profiling.

During those years, Kobach advanced an idea that had long been  circulating in conservative legal circles: that local and state  officials have the "inherent authority" to enforce federal immigration  laws. This unorthodox notion bucked the prevailing view—long held by  both Republican and Democratic administrations—that the federal  government has principal jurisdiction over immigration under the  Supremacy Clause of the Constitution. If local and state governments  were to strike out on their own, they could undermine federal efforts,  create jurisdictional chaos, and detract from law enforcement efforts by  discouraging immigrants from cooperating with police, critics argue. In  2002, however, Ashcroft's Office of Legal Counsel issued a memo, which  Kobach helped review, supporting the "inherent authority" theory.

"What Kris Kobach has done is gone out to localities  around the country and really used them as experimental laboratories for  pushing questionable legal theories."

After leaving the Bush administration in 2003, Kobach joined the  Immigration Reform Law Institute and began working with local officials  across the country to combat illegal immigration on the ground level. He  also pitched in as a defense attorney when such measures were  challenged in court, defending legislation in Pennsylvania and Texas  that would revoke operating licenses for businesses that hired illegal  immigrants and fine landlords who rented to them. In 2006, he landed his  first major gig in Arizona, hired by state officials to defend a law  that made immigrant smuggling a state crime.

Kobach has worked hard to develop laws that can withstand court  challenges. "[Arizona SB 1070] was very carefully crafted to track many  provisions in federal law—it creates a plausible case for proponents to  say we're not doing anything new," says Mary Giovagnoli, director of the  Immigration Policy Center. "It's a disingenuous argument, to say if  it's illegal in the federal law, it's okay when it's illegal in state  law...but it's very clever lawyering." In fact, Kobach scored a big  victory last year when the Supreme Court upheld a separate Arizona law  he helped craft that punished employers who hired illegal immigrants.

That said, Obama's Department of Justice has aggressively challenged the major laws that Kobach has helped author. In addition to  filing lawsuits against the Arizona and Alabama laws, the DOJ has taken  action against Arizona's Sheriff Joe Arpaio, whose officers Kobach  helped train in immigration enforcement. In December, Arpaio's officers  were forced to hand in their federal credentials due to complaints about  their immigration enforcement tactics, which the DOJ called illegal and  discriminatory.

But such legal challenges haven't slowed down Kobach, who has endorsed Mitt Romney and provided the candidate his immigration talking  points. In his first year in office as secretary of state, he successfully shepherded through a new Kansas voter ID law, claiming that  the current laws allowed immigrants to commit voter fraud—a new front  in the immigration wars that parallels the conservative push for  stricter voting laws. He's now advising Kansas legislators on a bill  that would give local police far more latitude in checking the status of  suspected illegal immigrants—effectively bringing Arizona's law to his  own backyard.

http://motherjones.com/politics/2012/03/kris-kobach-anti-immigration-laws-sb-1070