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Reuters General/ ­- Article, Seg, 16 de Abril de 2012
CLIPPING INTERNACIONAL (Supreme Court)
Kris Kobach: Immigration isn't just a
federal matter
By Terry Baynes
Mon Apr 16, 2012 2:01pm EDT
n">(Reuters) ­- The battle over illegal immigration
heads to the U.S. Supreme Court next week, when
the court will hear arguments for and against new
Arizona laws requiring police, employers and landlords
to expose undocumented immigrants.
Arizona of course is not alone in its crackdown on
illegal immigrants, with states including Alabama,
Georgia, Utah, as well as a number of cities, passing
similar measures.
The movement's chief legal architect is 45­-year old
Kris Kobach, a former constitutional law professor,
current secretary of state of Kansas and adviser to Mitt
Romney on immigration issues.
While Kobach is not arguing in the Arizona case, he
has been helping other states and cities defend their
laws against challenges by the U.S. Justice
Department and civil rights groups.
Reuters' Terry Baynes recently discussed with Kobach
the issue of state versus federal authority in
immigration matters. The questions and answers were
edited for clarity and brevity.
Reuters: What do you think about immigration policy
changes being forged in the courts?
Kobach: Almost all of these cases center on the
question of federal preemption ­-­- whether or not states
and cities can pass laws that regulate immigration
alongside the federal government. Arizona won a
victory last year when the Supreme Court upheld its
2007 legal workers law that requires employers to
verify the immigration status of their employees. That
sent a green light to all states and cities that if they
want to require employers to run E­-Verify searches on
employees, they can.
Reuters: Why isn't immigration an exclusively federal
matter?
Kobach: The federal government has primary authority
over immigration, but the Supreme Court has ruled
multiple times that states have spheres of activity
where they can operate to discourage illegal
immigration. It's an area of shared authority.
Reuters: How do you respond to the Obama
administration's argument that federal immigration law
is not designed to ferret out every person unlawfully
present in the United States but rather to serve a
broader federal policy with its own set of priorities?
Kobach: The federal immigration law written by
Congress is very clear and uncompromising. It calls for
enforcement across the board. The Obama
administration's argument has been: 'We, the
executive branch, choose to not enforce these laws.'
It's a novel theory, but it doesn't square with
preemption. Acts of Congress, treaties and the
Constitution can preempt state laws. Executive
pronouncements do not preempt.
Reuters: Are you involved in the Arizona case?
Kobach: I submitted an amicus brief on behalf of
Arizona, addressing two narrow issues. First, the
executive branch cannot preempt the states. It must be
Congress, and the acts of Congress do not express
any attempt to push aside the involvement of the
states. Second, the Department of Justice argues that
the decision whether to deport a particular alien is a
complicated one that the federal government needs to
be able to make. But if you look at the federal
immigration laws passed in 1996, Congress took away
that prosecutorial discretion the Obama Justice
Department claims it has.
Reuters: What's the biggest challenge in the litigation
over immigration laws?
Kobach: Judges will sometimes have difficulty
separating out the political arguments from the legal
arguments. That's always a challenge, to make sure
that the politics does not interfere with what should be
an apolitical legal determination concerning
preemption.
Reuters: How were the Arizona and Alabama laws
drafted to withstand legal challenges?
Kobach: The state law must use the exact terminology
of federal law. It must also define prohibited behavior
at the state level so that it's perfectly congruent with
prohibited activity at the federal level. One common
misconception is that Arizona was doing something
new and different by requiring immigrants to carry their
registration documents. But that's been required by
federal law since the 1950s.
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