Legal Commentary

Kobach on Arizona?s Immigration Law

By Jonathan H. Adler

UMKC law professor Kris Kobach, who helped author Arizona?s controversial immigration law, defends the law in today?s NYT.  According to Professor Kobach, the law ?prohibits the harboring of illegal aliens and makes it a state crime for an alien to commit certain federal immigration crimes. It also requires police officers who, in the course of a traffic stop or other law-enforcement action, come to a ?reasonable suspicion? that a person is an illegal alien verify the person?s immigration status with the federal government.?

I think Prof. Kobach effectively rebuts several critiques of the law, and suggests why some media and commentator characterizations are inaccurate.  Assuming the law operates as he describes it ? and as someone who helped draft it, he should know ? it does not appear to me to be quite the civil liberties disaster some claim (and I say that as someone who does not support restrictionist immigration policies).  Yet it does not eliminate all of my concerns.  Police retain substantial discretion to pull over or detain those they seek to question or have legal contact with, so I think concerns about how the law might be used or abused in practice are reasonable.

On preemption, Prof. Kobach has not convinced me that the law will survive legal challenge.  Insofar as stepped up state enforcement of federal immigration laws conflicts with federal enforcement or administration of federal law, or places additional burdens on federal officials (who, for instance, may be required to devote resources to process and expel those arrested by Arizona), I would think it is vulnerable.  This is particularly so because immigration law is not simply concerned with securign the border and keeping out those without a legal right to be in the country.  It is also about providing people with a means of immigrating to this country and seeking citizenship.  Federal immigration officials are required to balance these two missions.  Arizona?s law, on the other hand, is solely focused on the enforcement side of the equation.

UPDATE: Of course, Kobach?s op-ed does not discuss all of the law?s provisions.  One he omits is a little gem, discussed here, that authorizes private citizen suits to force greater enforcement by Arizona government agencies.  Specifically, the provision allows for suits against any government agency that ?adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.?  The use of citizen suits to force more stringent enforcement is common in some areas of the law, such as environmental protection, but that?s hardly a ringing endorsement.  In practice, citizen suits often prevent executive agencies from allocating inherently limited resources in line with agency priorities.  This is bad enough in an administrative context, but should be deeply worrisome in the context of standard law enforcement.  This provision is also different from traditional citizen suit provisions in that it provides for monetary penalties.

Full post as published by The Volokh Conspiracy on April 29, 2010 (boomark / email).