Professor of Law Explains SB 1070

Kris Kobach, a professor of law and lawyer in Missouri who helped draft Arizona's tough new immigration bill, talks about Senate Bill 1070.

1. Professor Kobach, have you been surprised by the national - and even international - reaction to passage of Senate Bill 1070 that you helped draft?

The national reaction has been surprising, for two reasons. First, numerous national figures (including President Obama) significantly mischaracterized SB 1070 in their criticism of it. It is clear that much of the hyperventilating reaction to the bill came from people who did not bother to actually read it. Second, in 2007, the Arizona Legislature passed the Legal Arizona Workers Act—making Arizona the first state in the nation to require all employers to use the internet-based E-Verify system to ensure that their employees are authorized to work in the United States, and taking business licenses away from employers who knowingly hire unauthorized aliens. (I assisted in the drafting of that law as well.) The 2007 law had a much broader impact than the 2010 law, yet there was very little attention devoted to it outside of Arizona. So why all of the controversy over a narrower bill? I suspect it has everything to do with the 2010 elections and the desire of some organizations to use this issue to motivate voters.

2. Is the intent of the legislation to permit suspicion of illegal status to be pursued independently or only as a follow-up on some other offense?

Only as a follow-up to some other offense. Section 2 of the law stipulates that a law enforcement officer must first make a "lawful stop, detention, or arrest … in the enforcement of any other law or ordinance of a county, city or town or this state." If the officer, during the enforcement of that other offense, develops reasonable suspicion that the person is an alien who is unlawfully present in the United States, then the officer must contact ICE if practicable to verify the alien's immigration status. Many city, county, and state law enforcement officers already did this before SB 1070 was enacted. Opponents of the law evidently think law enforcement officers in the state should turn a blind eye to such violations of federal law that they come across during their routine duties.

3. Why make illegal immigration a state crime? Why not just have local law enforcement turn illegal immigrants over to ICE?

SB 1070 doesn't make illegal immigration a state crime. Rather, it makes the failure of an alien to register or to carry certain registration documents a state crime. Since 1940, it has been a federal crime for aliens to fail to keep certain registration documents on their person. SB 1070 simply cites these federal statutes and prohibits aliens from violating them (8 U.S.C. §§ 1304(a) and 1306(e)). In other words, the Arizona law merely adds a layer of state penalty to what was already a crime under federal law. Ironically, open-borders activists have insisted for years that we use the term "undocumented" when referring to illegal aliens. Now, when a state takes seriously the documentation requirements of federal law, they become apoplectic.

SB 1070 thereby gives state and local law enforcement a third option that may be applicable when they encounter illegal aliens in the enforcement of other laws. Law enforcement officers already had the option to turn the illegal aliens over to ICE, or to make a case under Arizona's human smuggling statute. The documentation provisions of SB 1070 offer a third course of action. But if a county sheriff's office prefers to turn all illegal aliens that they encounter over to ICE, they certainly can continue to do so. Nothing in the law requires them to change their protocol.

4. Under the bill, do legal residents have to have proof of citizenship with them at all times? What are the consequences of not having it?

SB 1070 does not require U.S. citizens to carry any identification whatsoever.

Aliens who are lawfully present in the United States were already required by federal law to carry certain documents with them. For legal permanent resident aliens, the relevant document is a green card. The consequences of violating the Arizona law are the same as the consequences of violating the federal law: a fine of up to $100 and/or imprisonment of up to 30 days.

Any American who has travelled abroad knows that just about every country in the world imposes the same documentation requirements on U.S. citizens. It is hardly unfair or unusual to enforce our own laws on the subject.

5. What is the biggest misperception about the bill that you think needs to be corrected?

The biggest misperception about SB 1070 is the claim that it somehow encourages racial profiling. The people making this claim either haven't read the bill or they are willfully misrepresenting it. SB 1070 expressly prohibits racial profiling. In four different places, the law provides that "a law enforcement official … may not consider race, color or national origin in the enforcement of this section …." Race may not be considered in making any stops or determining immigration status. So if race were considered in any particular case, in violation of the law, the prosecution would not hold up in court. In addition, all normal Fourth Amendment protections against racial profiling will continue to apply. Most state and federal statutes do not include such special protection in the text of the statute; SB 1070 goes to extraordinary lengths to protect against racial profiling.

6. If someone calls the police and reports what he claims is someone else who is in the country illegally, do the police have an obligation under the bill to investigate?

No.

7. What's the basis for believing that the state has the authority to enforce federal immigration laws?

The U.S. Supreme Court has long recognized that states may enact statutes that are designed to discourage illegal immigration, without being preempted by federal law. That was the landmark 1976 case of De Canas v. Bica, in which the Supreme Court sustained a California law that prohibited employers from knowingly hiring unauthorized aliens. As long as Congress hasn't expressly barred states from taking the action in question, and Congress has not displaced all state laws from the field, and the statute doesn't conflict with federal law, it is permitted.

With respect to police officers making arrests of illegal aliens in order to assist the federal government, the Fourth, Fifth, Eighth, Ninth, and Tenth Circuits of the U.S. Court of Appeals have all recognized the inherent authority of state and local officers to do so. And with respect to the authority of Arizona to make it a state misdemeanor for aliens to fail to carry the documents required by federal law, the relevant question is whether the state law conflicts with federal law. Since SB 1070 mirrors federal law exactly, there is no conflict. Indeed, state and federal law are in perfect harmony.

Some of the people who are now declaring SB 1070 to be unconstitutional made the same claims regarding previous Arizona laws. Arizona's last three major laws concerning illegal immigration were all challenged in court—Proposition 200 in 2004, the Human Smuggling Act in 2005, and Legal Arizona Workers Act in 2007. (I assisted in the defense of the last two.) In every case, the law was upheld. Most recently Arizona won an impressive victory in the Ninth Circuit when the Legal Arizona Workers Act was sustained. So Arizona is three-for-three in court. I expect that when the dust settles after the current legal scrap is over, Arizona will be four-for-four.